If Your Spouse Dies Without a Will, You Could Lose Half of Your Assets

Many married couples are often so focused on planning for their lives that they fail to plan for their deaths and die without wills. When one spouse dies without a will, the surviving spouse may assume that all the property they accumulated during their marriage will automatically pass to the surviving spouse, but this is not always the case.

Under Texas law, if the deceased spouse had any children who were not also the children of the surviving spouse (i.e., the surviving spouse’s stepchildren), the deceased spouse’s one-half (1/2) interest in the couple’s community property passes to the children of the deceased spouse, not to the surviving spouse. There are a considerable number of misconceptions about what property is considered community property that need to be clarified.

The State of Texas presumes that all property acquired by persons while married is community property, unless proven to be separate property, which is property that was owned prior to the marriage or that was received during marriage by gift or inheritance. The most common misconception about community property that attorneys hear is: “No, that asset is not community property because it is only in my name, not my spouse’s.” Simply titling property in one spouse’s name when it was purchased or earned during the marriage does not make that property separate property. Community property includes any property that was acquired by either spouse during the marriage – except when received by gift or inheritance – regardless of which spouse’s name that property is titled. This includes real estate, bank and investment accounts, vehicles, life insurance, and even retirement accounts.

While the homestead is subject to the above rules, it is important to note that the Texas Constitution guarantees that the surviving spouse may exclusively use and occupy the home as his or her homestead for life. However, in the scenario outlined above upon the death of the surviving spouse, he or she may only pass on a one-half interest in the house; the other half still belongs to the stepchildren. Additionally, there are exemptions and allowances of cash and property that a court can set aside for the benefit of the surviving spouse, but they often pale in comparison to what the surviving spouse could have kept had the deceased spouse died with a will.

Another common misconception is that if a spouse dies with a will that leaves everything to the surviving spouse, then the will automatically transfers all property to the surviving spouse. Many people are unaware that in order to validate the will, it must go through the court system, be admitted into probate, and then followed through with a formal administration of the estate. Others just decide that they do not want to spend the money necessary to probate the will. This could have catastrophic results for blended families (with stepchildren).

Under Texas law, a will is generally not entitled to be admitted to probate after four years from the date of the testator’s (maker of the will) death. This means that if a deceased spouse’s will is not filed for probate within four years, in most circumstances, the deceased spouse will be considered as having died without a will, and if there are children that are not also the children of the surviving spouse, the deceased spouse’s children will inherit his or her one-half interest in all community property.

Every person should have a comprehensive estate plan in place, but it is especially important for married couples in a blended family. To avoid potentially disastrous and unintended consequences, you should consult with an experienced estate planning attorney to preserve your marital assets.

You may visit our website at www.wrightabshire.com. Nothing contained in this publication should be considered as the rendering of legal advice to any person’s specific case but should be considered general information.