The answer depends on whether your spouse has a will or trust. If not, you are likely to be very unhappy with the outcome.
Community Property
Texas is a community property state. That means that, absent a pre- or post-marital agreement, you and your spouse each own a ½ undivided interest in your community property, which includes everything you acquired while married to each other except for gifts or inheritances. When your spouse dies, you still own your one-half of the community property, but you do not automatically inherit your spouse’s half.
If your spouse has a will or trust, then their half of community property (everything acquired while married to you) passes according to that will or trust. (I’m just going to say “will” from now on for simplicity’s sake.) Spouse can leave their half to you, to their kids, or to anyone else they choose.
If Spouse does not have a will and has no children or has no children other than those the two of you have together, then you will inherit Spouse’s one-half of the community property.
If Spouse dies without a will and has kids from another relationship, you will not inherit Spouse’s one-half of the community property, including your jointly owned home. It does not matter how long you have been married, that you bought everything together, or that you need Spouse’s 1/2 of everything to survive. All of Spouse’s children – those from the prior relationship and those from your marriage – will inherit Spouse’s half. You will have the right to continue living in the homestead for the rest of your life, but you will have to get consent from all of the kids to sell it or to take out a home equity loan – even if the loan is necessary to make improvements. You will be responsible for the costs of maintaining the house and paying the taxes. In theory the kids will be responsible for paying any mortgage, but if they don’t and you don’t, then the bank will foreclose and you will have nowhere to live. (If you pay the mortgage, then you may have a right of reimbursement for money you put into the home, but that is a topic for another post.)
Separate Property
You will fare even worse with respect to any separate property Spouse owned. Separate property is property that Spouse owned before your marriage or that Spouse inherited or was given as a gift while you were married and never converted into community property.
Absent a will that says otherwise, you will inherit only a 1/3 interest in Spouse’s separate personal property (cars, boats, furniture, etc); Spouse’s kids inherit the other 2/3.
Spouse’s kids will inherit 100% of Spouse’s separate real property – you will inherit only a 1/3 life estate. So you will again have a place to live, but won’t be able to sell the homestead or take out loans for improvements without consent from the kids. If Spouse owns business-related property or rental property before you married that you both have worked on during your marriage – you will only inherit a 1/3 life estate.
If Spouse has no kids, you will inherit all of Spouse’s separate personal property but only a ½ undivided interest in their separate real property. Their family – parents, siblings or siblings’ descendants – will inherit the other half. It doesn’t matter if Spouse had nothing to do with his family for decades.
Solution
If you’ve only been married a short time, then the rules outlined above may seem fair. But if you’ve been married for 20 years and built up your assets together, they may seem very unfair. But these rules are just the default – if Spouse does not have a will. You and your spouse do not have to settle for the default. You can both have wills (or trusts) drafted that fairly divide all of your assets upon your deaths based upon your ages and your ongoing needs, what you each brought into the marriage, what you have built together, and the ages and needs of the younger children you had together and of the children you each have from prior relationships.
For a chart summarizing the inheritance rules when a Texan dies without a will, go to https://www.traviscountytx.gov/images/probate/Docs/DnD_diagrams.pdf.
If you wish to discuss estate planning options for your blended family, please contact our office. For more information about estate planning generally, please visit our website at www.baumerlaw.com/estate-planning.
Megan Baumer Estate Planning and Elder Law Attorney Law Office of Michael Baumer 512-476-8707 Website: www.baumerlaw.com/estate-planning Blog: www.baumerestateplanning.com
