Putting Our Clients First Every Time We believe in helping our clients transition through family law cases, as smoothly as possible.

Can My Ex Inherit My Assets?

The question of who will inherit your assets if you were to die is a very relevant one to ask. Many of you reading this blog post have families and are married. Some of you reading this blog post do not have families and are not married. When we discuss the topic of inheritance what we really mean is what happens if you were to pass away without a will, a will is a legal document which directs a specific person named within the will to divide up your assets upon your death in a certain fashion. The executor of your estate is legally bound to follow the terms of your will and may not deviate or utilize their own judgment in doing so. 

A will is a time-honored legal instrument that allows you to dictate how your assets are to be divided upon your death. Not only do you have the security of knowing that your estate will be handled and disposed of in the fashion that you wish but you also ensure that the government doesn't Get to play a role in that process. A major question that we need to ask is what would happen if he were to pass away without a will? who would be able to inherit your assets? Is it possible that an ex-spouse could come in and inherit in front of your children or current spouse? 

An overview of how property is divided upon a person’s death who does not have a will 

The title to this blog post section could be shortened to an overview of intestacy laws in Texas. Intestate succession Is the legal term for how property in debts are divided up when a person in our state dies without a will. The basics of intestate succession are if you die without a will your assets will go to those people who are your closest relatives under the laws of our state. Depending on your circumstances you may be surprised to learn at certain people stand in here from you what other persons would go to the back of the line. 

The only assets that would actually pass through intestate succession in Texas are ones that would have also been able to pass through your will. This means that any assets which are not in your name alone would likely not pass through intestate succession. For example, if you have life insurance policies, bank accounts that have payable on death designations, property that you own with another person , or property owned within a living trust these are examples of assets that would not pass through your will and do not pass through in testing succession in Texas. 

The above examples are assets that would pass to the co-owner of the property mentioned or a beneficiary under a living trust or life insurance policy. It would not matter if he didn't have a will and passed away. When you hear about a person Who is trying to set up the division and distribution of their assets in a way that would avoid probate this is what that person has in mind. In case that person was to die without a valid will then at least these assets would not be subject to division by a court. 

How will property be divided in the event you die without a will in Texas? 

Your individual circumstances will determine how your assets will be divided upon your death in Texas. The key point to understand is whether or not you have any living heirs as far as your parents, close relatives, a spouse or your children. I do not mean to provide you with a completely comprehensive overview of intestate succession in Texas. Rather, what I would like to do is take the time to give you a broad overview so that you have a general understanding of how intestate succession works and therefore how important it is for you to have a will drafted for yourself no matter your age. 

Generally speaking, children have first dibs when it comes to intestate succession in Texas. If you were to pass away with children but were not married, then your children would inherit all of your assets. Likewise, if he were to pass away with no children and no other relatives but you were married then your spouse would inherit all of your assets. Your siblings or parents would then inherit all of your assets if you were to pass away with no other relatives, no spouse and no children. 

Next, let's consider a situation where you were to pass away with no will, a spouse and children who are also the biological children of your spouse. In circumstances like these your spouse would then inherit all of your Community property. Community property is presumed to be all property owned at the time of your divorce by both you and your spouse. 1/3 of your separate property would go to your spouse while the remaining portions of your separate property would go to your children. Essentially, outside of the one third inheritance of your separate property and all the Community property of your marriage your children would inherit everything else from you upon your death. 

On the other hand, let's imagine a situation where you were to pass away with a spouse and with children. However, in this example your spouse would not be the biological parent to your children. In a case like this your spouse would keep half of your Community property and 1/3 of your separate personal property. Any real estate owned by you would then succeed to your spouse where he or she would have a right to use the real estate for life. your children would inherit everything else including the remaining 1/2 share in your community property. 

The importance of Community property laws in relation to intestate succession 

Depending upon How you and your spouse owned your property will also determine how that property is divided upon your death for you to die without a will. There are two kinds of property in relation to married persons. The first is community property and the second is separate property. As we have already talked about, Community property is generally speaking property that is acquired while you are married. On the other hand, separate property is generally speaking property that you acquired before you were married. Important for our discussion today is the distinction that gifts made specifically to one spouse or inheritances during the course of the marriage are considered to be separate property. 

Getting back to the discussion at hand, your spouse would be in a position to inherit half of your Community property unless you have children or grandchildren. In the event that you have any kind of separate property your spouse will inherit either all or a portion of it. Your spouse and any relatives that you have would then share your separate property. If you do not have a will and pass away what your children are eligible to receive in intestate succession depends upon How your property is classified, either as separate or community, and whether or not you are married. 

The size in amount of the property that your children stand to inherit from you upon your death depends on how many kids you have, whether or not you were married at the time of your death and whether your spouse is the biological parent of your children. In order for your children to be able to inherit from you under the Texas state laws dealing with intestate succession, your children must actually be your legal children. You may find yourself in a circumstance where you have taken in A niece or nephew and consider him or her to be your child. However, if that child is not your legal son or daughter then he or she would go to the back of the line when it comes to intestate succession in Texas. 

Should you be worried about the state of Texas getting all of your property upon your death? 

Some of you reading this blog post may have concerns about whether or not the state of Texas would be able to gobble up your assets upon your death were you to pass away without a will. Imagine all the hard work and good faith efforts you made to build a life for yourself only to pass on to the government rather than to your children or spouse upon your death. Is this a valid concern for you to have? 

While it is true that if you die without a will and have no family that your property will likely go to the state of Texas. However, it is extremely unlikely that this reality would befall you. If you do a deeper examination of Texas law on intestate succession You will find that the laws have been created in order to allow for any person who was even Distantly related to you 2 inherit your property before the state would. Think about all the relatives you have: your children, a spouse, grandparents, parents, uncles, aunts, cousins, etc. All of these people, no matter how distantly related or what the state of your relationship is with that person, would stand to inherit your property before the state of Texas would. 

Could your ex-spouse stand to inherit from you upon your death? 

You will notice that nowhere in the preceding sections of today's blog post have we talked at all about an ex-spouse is right to inherit property from you or you to pass away without a will. A divorce is a great time to evaluate your finances and establish what is known as an estate plan in relation to your property and how you want it to be divided upon your death. this is true no matter your age or no matter what you are current state is in life as far as property is concerned. You may be a young person with little to nothing in the way of assets but it is still going to be a headache for your close family too handle the events of your passing without your having a will. 

If you were to pass away without having done any of this legwork and you still had an ex-spouse listed, for example, as a beneficiary under a life insurance policy or even a retirement account then you should be aware that the state of Texas will automatically remove your ex-spouse as a beneficiary under any kind of financial instrument as soon as you are legally divorced. To answer the initial question posed by today's blog post if you forget to remove your ex-spouse from any of these documents the state will step in and make sure that he or she does not inherit property of yours in front of your children or other relatives. If you do not have any other relatives, then The property division would be determined by a probate judge. 

On the other hand, if you find yourself in a position where you want your ex-spouse to be able to inherit from you or you want your ex-spouse to be able to collect benefits under an insurance policy or retirement plan even after your divorce then you should be sure to state that explicitly in your final decree of divorce. The reason being is that we have covered how the law in Texas does not typically support these type of arrangements. It is very important that you work closely with your family law attorney if you would like an unorthodox intestate succession plan to go into place regarding your ex-spouse. 

Questions about Texas family law? Contact the Law Office of Bryan Fagan 

If you have any questions about the material contained in today's blog post, please do not hesitate to contact the Law Office of Bryan Fagan. Our licensed family law attorneys offer free of charge consultations six days a week in person, over the phone and via video. these consultations are a great way for you to learn more about Texas family law and about how our office is best suited to serve you and your family.  

Categories: