Second Marriages and Intestate Succession in Texas

Blended families are increasingly common but can create significant complications if a person dies without a will. In Texas, intestate succession laws don’t always reflect modern family dynamics-especially when stepchildren, separate property, or children from prior relationships are involved.

What Happens Without a Will?

If someone dies intestate (without a will) in Texas while in a second marriage, the estate is divided based on a formula in the Texas Estates Code. This often results in:

• Children inheriting the deceased’s share of community property, not the surviving spouse when there are any children from a previous relationship.
• The surviving spouse keeping only half of the community property-not the entire estate as many assume.
• Separate personal property being split between the spouse and children, often causing financial strain for the surviving spouse.
• Separate real property being subject to the surviving spouse’s life estate, which can make disposing of the property difficult without including the spouse and determining the value of the surviving spouse’s share.
• It could make getting independent administration more difficult, thereby increasing the costs and legal fees associated with probate under court supervision.

A Common Pitfall

Imagine a man with children from a prior marriage remarries and passes away without a will. His children could inherit his half of the home he shared with his second wife.
Additionally, stepchildren do not inherit under intestacy laws unless they were legally adopted by the stepparent. If a stepparent wishes to leave part of their estate to their stepchildren and passes away without a will, that intention would be frustrated because a stepchild is not considered to be a child under the intestacy laws.

Why Planning is Essential

Without a will or trust, your family may end up in court, facing delays, disputes, and unintended outcomes. A comprehensive estate plan:

• Protects both spouse and children
• Clarifies intentions
• Prevents unnecessary legal and emotional battles
• Prevents the estate from being diminished by litigation

If you’re in a second marriage, it’s critical to consult an estate planning attorney to ensure your assets are distributed according to your wishes-not the default laws of the Lone Star State.

A Cautionary Tale. Robert and Janice were married for 20 years. It was the second marriage for both. Prior to his marriage to Janice, Robert had 3 children from a previous marriage and Janice also had 3 children from a previous marriage. During 20 years of marriage, Robert and Janice bought a house together, which was their home until Robert’s death. In addition, Robert had a tract of real property that he had bought before his marriage to Janice and Janice had some real property of her own by inheritance. Robert died unexpectedly. He had not made a will directing the disposition of his assets or designating a personal representative to settle his estate.

Robert and Janice’s children did not get along with each other, nor did Robert’s children get along with Janice. Upon his death, Janice filed an application to determine heirship and for letters of administration on Robert’s estate. Janice was advanced in years and Robert’s children were afraid that her children would control her actions as personal representative to their detriment. Not only did they object to Janice becoming independent administrator, but they objected to her serving as personal representative of Robert’s estate in any capacity, claiming that she was incapacitated and therefore disqualified to serve.

A bitter conflict arose which tore the family apart as everyone took sides. After long protracted litigation, it was finally agreed that Janice would serve as dependent co-administrator with Robert’s oldest child, Bobby. In addition to the legal fees incurred during the contest, the court had to appoint a temporary administrator pending contest, which also drained the estate of funds. Finally, once a permanent administration was put in place, it was a court supervised dependent administration, which required a bond and additional legal fees and court costs, which would have been avoided with an independent administration. If Robert had made a will, the conflict between family members that arose because his wishes were not clear, the expensive litigation that resulted, and the costs associated with a temporary administration that ate up much of the estate could have been avoided.

This cautionary tale alerts us all to the essential need to have your estate in order, as you wish. Contact McGarvey PLLC to begin a conversation about how to safeguard your estate at 281.501.3030.