Inheritance of community property without a will

Sandra Reed
Sandra Reed

Jerry and Jackie have three children, Jason, Janna and Julia. All three children are theirs together. Neither spouse has any other children. John has a daughter, Carole, by a previous marriage. Beverly has a son, Bobby, by a previous marriage. John and Beverly have a son, Jeff, together. All of the property of both couples is community property. What happens to the community property if Jerry and John die without a will?

In Texas, community property is owned one-half by each spouse. When a decedent dies without a will, all of decedent’s community property (that is, one-half of all community property) will pass to the surviving spouse if all children of the decedent are children of the surviving spouse. Texas Estate Code § 201.003.

Should Jerry die without a will, upon his death, all of the community property will go to his spouse, Jackie. However, if John dies without a will, upon his death, his community property (that is one-half of all the community property) will pass to his children and Beverly will retain her community property, meaning the other half of all community property.

William D. Pargamon, of the Austin law firm, Saunders, Norval, Pargamon & Atkins, LLP reported in a legislative update dated May 30, 2019, that some lawyers and judges had erroneously interpreted the provision of the Texas Estates Code § 201.003. These lawyers and judge read the provision to mean that children of a decedent who had children other than those with the surviving spouse, would inherit one half of the decedent’s community property, meaning one-fourth of all the community property.

The 2019 Texas Legislature amended the code provision to make it clear that children of such a decedent would receive one-half of all community property.

Spouses with blended families should be aware that they need to make a will to insure that they control the destiny of their community property and through that disposition, the destiny of their families. If these spouses do not create a will, the surviving spouse will be robbed of property that he or she may desperately need to fill the family’s needs, particularly if there are adult children as well as minors involved.

Sandra W. Reed is an attorney with Katten & Benson, an Elder Law firm in Fort Worth, Texas.  She lives in beautiful Somervell County, near Chalk Mountain. She may be contacted by phone at 254.797.0211 or by email