MY PARENT REMARRIED.
WILL THE NEW SPOUSE
March 15, 2021
The death of a parent or the divorce of parents is difficult for children of any age. Although a child may be happy for a parent who finds a new spouse, that remarriage can cause anxiety as well. Children may be wondering if a new spouse, stepchildren, or half-siblings will result in them being left out entirely from the remarried parent’s estate.
Of course, parents who die with a will can leave their children what they wish, but what happens when a parent dies without a will? In 2021, an estimated 33% of adults do not have a will. Based on the population of Texas, that’s more than 7 million people.
At my firm — Russell Manning Attorney at Law — I have more than 30 years of experience answering inheritance questions for individuals and families in Corpus Christi and The Coastal Bend areas of Texas.
DYING WITHOUT A WILL
When someone dies without a will, it is referred to as dying “intestate,” and their estate must go through the probate process in Texas court. Probate is the court procedure that validates or invalidates wills and oversees the administration of estates and guardianships.
The probate court will determine how the assets of those who die intestate are divided using the Texas law of “intestate succession.” Intestate succession is the order in which heirs and spouses receive those assets.
INTESTATE SUCCESSION IN TEXAS
Assets subject to succession are those which are in the decedent’s name only (including cash, bank, savings, and money market accounts, vehicles, investments, royalties, businesses, furniture, jewelry, artwork, memorabilia, and other separate personal property, as well as homes and other real property).
If, for example, a bank account has a “distribution on death” designation or a vehicle has a “title on death” notation, they do not pass through probate. If real property has another name on the deed (joint tenancy) or is titled to a trust, it is not subject to probate.
All other assets of an intestate person’s estate are distributed according to the law of intestate succession. In the case of a parent who leaves behind children and a spouse who is not the parent of those children, the surviving spouse inherits 1/2 of the community property, 1/3 of the decedent’s separate personal property, and the right to use the real estate for the rest of the spouse’s life. The decedent’s children receive everything else, including the other 1/2 of the community property.
CHILDREN’S INHERITANCE RIGHTS IN TEXAS
Biological children and adopted children enjoy the strongest inheritance rights from a parent’s estate. Biological children include those born outside of the marriage, so long as paternity was established. Stepchildren not adopted and foster children are not heirs under intestate succession.
Children conceived but not born when the parent died are heirs so long as they survive for at least 120 days after birth. Furthermore, if a decedent’s child predeceases them, that child’s share is passed to their children under the law.
HIRE AN EXPERIENCED PROBATE ATTORNEY
Most people think about hiring an estate planning attorney to draft their will, trust, or other estate planning document, but retaining an experienced attorney to protect your interests when a parent dies intestate is also a wise move.
Families of all kinds can find the probate process complicated, confusing, and stressful. Those who have a probate attorney representing them can often spend more time grieving the loss of their loved one rather than fighting with that parent’s surviving spouse and other heirs.
At Russell Manning Attorney at Law, I am dedicated to helping clients in Corpus Christi, South Texas, The Coastal Bend area, and the counties of Bee, Kleberg, Nueces, Live Oak, Jim Wells, Aransas, and Victoria navigate the intricacies of probate. If you have questions about a parent’s estate, probate, or estate planning, call my offices in Corpus Christi or Fort Worth to schedule a consultation.