Texas law affords surviving spouses important rights and benefits.  In order to preserve all rights and benefits granted under the law, a surviving spouse must adhere to time-sensitive deadlines provided by statute. The failure to meet one of the probate deadlines can cause a surviving spouse to lose one or more spousal entitlements.

What if a Spouse Dies Without a Will?

  • INTESTATE. When an individual dies without a will, intestate succession law will govern.  Under Texas law, a statutory framework determines how a decedent’s estate will be distributed.  This is referred to as Intestate Administration.
  • INTESTATE SHARE.  If a spouse dies without a Will, the surviving spouse receives an intestate share.
  • SHARE OF SURVIVING SPOUSE – NO CHILDREN.  If the only survivor is a surviving spouse then the surviving spouse receives the entire estate of the decedent. The surviving spouse retains the one-half of the community property that the surviving spouse owned once the marriage was dissolved by death and inherits the deceased spouse’s one-half of the community property.
  • SHARE OF SURVIVING SPOUSE – No Non-Spousal Descendants.  If all of the deceased spouse’s surviving descendants are also descendants of the surviving spouse, then the surviving spouse will own all of the community property, that is, the surviving spouse retains his or her one-half of the community and inherits the other half.
  • SHARE OF SURVIVING SPOUSE – Non-Spousal Descendants.  If there are any descendants who survive the decedent and are not descendants of the surviving spouse, the decedent’s one-half interest in the community probate assets will pass to the decedent’s descendants per capita with right of representation.

Elective Share or Election Against a Will

Texas is a community property state.  There is NO right of election.  A surviving spouse owns one-half of the community interest without restrictions.  See Tex. Fam. Code. 3.002. In the event the decedent attempted to dispose of more than his or her share of the community property by a will, the surviving spouse must then decide whether to take under the will as provided, or take his or her own property and forego the bequest.

Homestead Rights and Allowance

Article XVI, sec. 51 of the Texas Constitution who can receive homestead property upon the death of an owner if he or she is survived by a spouse or a minor child.  A surviving spouse is entitled to no less than a life estate in any property used as a homestead by the deceased spouse in Texas. See Tex. Const. art XVI, sec. 52.

Exempt Property

The surviving spouse may claim exempt personal property or an allowance up to $5,000, in lieu of homestead, if the estate is insolvent.
Further, the surviving spouse may claim family allowance upon to one (1) year’s support.  The will may alternatively provide for the surviving spouse to take property in lieu of the one year’s support.

Marital Agreements

  • MARITAL AGREEMENTS.  Martial Agreements which are often referred to as prenuptial agreements, ante-nuptial agreements, and post-nuptial agreements, can waive or create rights upon the death of a spouse.  It is imperative to have a lawyer review these agreements who is familiar with the probate process to properly address any rights you may have at death or as a surviving spouse.   It is also important to have these documents properly reviewed by experienced probate lawyers to ensure any death time provisions are properly addressed prior to signing any of these agreements.  Many of the rights of a surviving spouse can be waived or increased in properly drafted agreements.  Tex. Fam. Code § 4.103.

Requirement to File a Known Will

Anyone who possesses a will must deliver that will to the probate court in the Texas county of the decedent’s domicile at death within four years after the decedent’s death.  Texas law bars the probate court from issuing letters of administration when a will has not been filed within this four year deadline.

What If I Cannot Afford a Probate Lawyer to Represent Me In Procuring My Surviving Spouse Rights?

  • Some probate lawyers who handle a large volume of surviving spouse cases will be flexible and consider arrangements on a contingency basis or on a pay-at-the-end basis, where the surviving spouse client has no up-front payment obligation.