When a Texas resident dies without a valid will, the state writes one for them. A set of default rules called intestate succession, found in the Texas Estates Code, decides exactly who inherits and in what shares.1 Many people assume everything automatically goes to their spouse. In Texas, that is often not what happens.
Because Texas is a community property state, the outcome depends on how your property is classified and on whether all of your children are also your spouse's children. Below is a plain-English walkthrough of the who-gets-what scenarios, straight from the statute.
What "dying intestate" means in Texas
Dying intestate simply means dying without a valid will. When that happens, the surviving spouse and children usually inherit the probate estate, but the specific division is set by law rather than by your wishes.2 Intestacy rules only govern probate assets. Property with a named beneficiary, such as a life insurance policy or a payable-on-death bank account, passes directly to that beneficiary and is untouched by these rules.2
Community property versus separate property
Texas law sorts a married person's assets into two buckets, and the distinction drives everything that follows.
- Community property is generally what the couple acquired during the marriage. Your surviving spouse already owns one-half of it. A death only puts your one-half up for distribution.
- Separate property is what you owned before marriage, plus anything you received during marriage by gift or inheritance.
Why this matters: Even with a will, a married Texan can only give away their own half of the community property plus their separate property. The surviving spouse's half of the community estate is already theirs and cannot be redirected by anyone's will.
If you leave a spouse and children
This is where the biggest surprises live. The community estate and the separate estate follow different formulas.1
Community property
If every one of your children is also a child of your surviving spouse, your one-half of the community property passes entirely to your spouse, who then owns all of it. But if you leave even one child who is not also your spouse's child (for example, a child from a prior relationship), your one-half of the community estate passes to your children instead, not to your spouse.1
Separate property
Your separate property splits between spouse and children under a fixed formula. Your spouse takes one-third of your separate personal property (things like cash, vehicles, and accounts), and your children take the other two-thirds. For your separate real estate (land and homes), your spouse receives a life estate in one-third, with your children inheriting the remainder.3
The who-gets-what table
| Your family situation | Community property (your 1/2) | Separate property |
|---|---|---|
| Spouse, all children are also the spouse's | Passes 100% to spouse | Spouse: 1/3 personal property + life estate in 1/3 of land. Children: the rest |
| Spouse, at least one child from another relationship | Passes to your children | Spouse: 1/3 personal property + life estate in 1/3 of land. Children: the rest |
| Spouse, no children or descendants | Passes 100% to spouse | Spouse gets all personal property and 1/2 of land; the other 1/2 of land goes to your parents or siblings |
| Children, no spouse | Not applicable | Passes entirely to your children and their descendants, in equal shares |
| No spouse, no children | Not applicable | Passes to your parents, then siblings, then more distant kin |
If you leave children but no spouse
When there is no surviving spouse, the entire estate passes to your children and the descendants of any child who died before you.3 The children share equally, and a deceased child's share drops down to that child's own children.
If you leave no spouse and no children
With no spouse and no descendants, Texas law climbs your family tree in a set order. Your estate divides equally between your two parents if both survive. If only one parent is living, that parent takes half and your siblings (and their descendants) take the other half. If neither parent survives, your siblings inherit everything. If there are no siblings either, the estate splits between the paternal and maternal sides of your family through grandparents and their descendants.3
The takeaway for blended families and unmarried partners: Texas intestacy law does not recognize a boyfriend, girlfriend, or long-term partner you were not married to. It also does not account for stepchildren you never adopted, or for the specific person you would have wanted to inherit your home. If you die without a will, none of your personal preferences carry any weight.
How a simple will changes all of this
You can override nearly all of these default rules with a valid will. Texas is unusually friendly to do-it-yourself testators here: it recognizes the holographic will, meaning a will written wholly in your own handwriting and signed by you. A holographic will needs no witnesses and no notary, and it does not even have to be dated to be valid.4
Texas also imposes no forced heirship on adult children, so you are free to leave your estate to the people and causes you actually choose. If you want your spouse to keep the family home outright, or want a specific child or a charity to receive a particular asset, a will is the only way to say so. Whether you live in Houston, Dallas, Austin, or San Antonio, the same statewide rules apply, and the same simple document can replace them.
Where to keep it: After you sign, store your will somewhere safe and tell your executor where it is. Texas lets you deposit a will with your county clerk for safekeeping, though there is no statewide will registry.2
If you want a step-by-step walkthrough of drafting your own document, see our guide on how to write a will in Texas. When you are ready to put it on paper, you can create your Texas will here in a few minutes and then copy it out in your own hand to make it a valid holographic will.
Sources
- 1Texas Estates Code Chapter 201, Descent and Distribution (statutes.capitol.texas.gov)
- 2Texas State Law Library: When There Is No Will (guides.sll.texas.gov)
- 3Texas Estates Code Sec. 201.001 (FindLaw) (codes.findlaw.com)
- 4Texas Estates Code Sec. 251.052, Exception for Holographic Wills (texas.public.law)
About the author
Max Kuch
Max Kuch writes about estate planning, wills and inheritance for Texas Will Template. He gathers the rules from the Texas statutes and the leading public data, then explains them in plain, accessible language so anyone can put their wishes in writing.