Does a spouse inherit in Texas? Maybe…

by Robert A. Ray


Is There a Will?

If there is a will, the will determines who inherits. The spouse would still own their part of the community property.

Are Their Children?

A spouse’s inheritance rights in Texas may depend on whether the deceased children had children.

Types of Property

A spouse’s inheritance rights in Texas may depend on what type of propery is involved. Is it community or separate property?

Does a spouse inherit in Texas


Whether a spouse inherits in Texas is more complicated than it seems. Is there a will? Are their children? What kind of property is involved, community property or separate property? All of these things determine the inheritance rights of a spouse.

The discussions below are about the right of a spouse to inherit in different circumstances.

If you have a question about a pending or anticipated lawsuit about contesting a will in Texas, use the Contact Us page at the top of the site to see if we can help.

Factors to Determine if a Spouse Inherits

These discussions are in general terms and may not apply in all situations.

Is there a will?

If there is a will that is not contested, the will determines who inherits. If the will gives property to the spouse then they inherit. If the will does not give property to the spouse, they don’t inherit. Texas doesn’t have forced heirship.

Community or separate property?

Determining what property is owned is the first step in deciding what a spouse inherits. Texas is a community property state. That means that everything acquired during the marriage is presumed to be community property owned one-half by the husband and one-half by the wife. A spouse can only dispose of their half of the community property. They can’t dispose of their spouse’s one-half. Separate property is everything owned before marriage and everything acquired during marriage by gift or inheritance.

Are there children?

Does the decedent have children and if so, is the surviving spouse the parent of all of the children? If there are any children of the decedent who are not the children of the surviving spouse, then the children will inherit most of the estate. However, if all of the children of the decedent are also children of the surviving spouse, then the spouse will inherit the community property and the children will inherit some or all of the separate property.

Divorce  and Annulment

If you are married, can you have a common-law marriage with another person? No, you can’t. However, if the first marriage is annulled, you might be able to have a common-law marriage to someone else. See this article on divorce and annulment.

So what does this all mean?

We started of with a strong answer of “maybe” to the question of “Does a spouse inherit in Texas?” From the above discussion, you see that it is more complicated than you would think. Every fact situation is different and you should not take, or refrain from taking, any action based on what you read. You should talk to your attorney about your situation to understand what your rights are.

Can Spouses Inherit – Including Common Law

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In the DFW area


(214) 660-5700

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