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?
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.
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.
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?
Contact the probate lawyers of Clark Skatoff for a no-obligation consultation at (561) 842-4868.