Dying Without a Will in Texas (2026): Who Inherits What

When a Texas resident dies without a will — what lawyers call dying "intestate" — the Texas Estates Code decides who inherits. The statute doesn't know about second marriages, estranged children, longstanding caretakers, or any of the relationships that actually shape a family. It just applies a formula. Here's how that formula works in 2026, and what your family will actually face if you never get around to drafting a will.

What happens if I die without a will in Texas?

Texas intestacy law decides who inherits your property. The result depends on whether you were married, whether you had children, and whether assets are separate or community property. The Texas Estates Code distributes everything by formula — and that formula often surprises families because it doesn't match what the deceased would have wanted.

How Texas Intestacy Law Works

Texas Estates Code §§ 201 and 202 lay out the intestate succession rules. The framework is straightforward but the specifics depend on family structure and the character of the property.

If You're Married with Children from That Marriage Only

• Community property (assets acquired during the marriage): the surviving spouse keeps 100%.
• Separate personal property (cars, jewelry, bank accounts owned before marriage or received by gift or inheritance): one-third to the spouse, two-thirds split equally among children.
• Separate real property (real estate owned before marriage or inherited): one-third life estate to the spouse, with the remainder split among children.

If You're Married with Children from a Prior Relationship

This is where Texas intestacy gets harsh. The surviving spouse's share of community property drops dramatically:

• Community property: the spouse keeps only their own one-half. The deceased's one-half passes to all of the deceased's children, including those from prior relationships.
• Separate personal property: one-third to spouse, two-thirds to children.
• Separate real property: one-third life estate to spouse, remainder to children.

A man with two adult children from a first marriage and a current wife of twenty years, no will: his half of every joint account, every piece of community real estate, every retirement account share titled in his name alone — all of it goes to his adult children, not to his current wife. That's the default. Most people don't know this until it's too late.

If You're Married with No Children

• Community property: the surviving spouse keeps 100%.
• Separate personal property: the spouse keeps 100%.
• Separate real property: half to spouse, half to parents or siblings (depending on who survives).

If You're Single with Children

Everything passes to the children in equal shares. If a child has predeceased, that child's share passes to their descendants (the "per stirpes" rule).

If You're Single with No Children

The estate goes up the family tree: parents first, then siblings (and their descendants), then more distant relatives in defined order. Texas eventually distributes to first cousins, second cousins, and beyond — the search continues until heirs are found. Property escheats to the state only when no living relative can be located, which is rare.

Intestate Distribution: Side-by-Side

The Risks of Not Having a Will

The financial math is only part of the story. Practical consequences of dying intestate in Texas:

No guardian for minor children. A will is the only document that nominates a guardian for minor children under Texas law. Without one, the court selects the guardian, weighing input from family members who may not agree. The "obvious" choice isn't always who the court picks.

Heirship determination before administration. Before probate can even begin, the court has to formally determine who the heirs are. That's a separate proceeding — Texas Estates Code Chapter 202 — that adds time and legal fees. The court requires two disinterested witnesses to testify about family history, and an attorney ad litem may be appointed to represent unknown heirs.

Loss of independent administration. Without a will, the estate may need to go through dependent administration unless all heirs agree to independent administration. That means more court supervision, more hearings, higher attorney fees.

Required bond. Without a will waiving bond, the administrator typically must post a surety bond. Premiums run a percentage of the estate's value annually.

The blended-family disaster. The biggest risk by far. A second marriage with children from a prior relationship and no will is a near-guarantee of conflict — the surviving spouse and the deceased's adult children become co-owners of the family home, business interests, and joint accounts. Litigation is common.

Real estate gridlock. When real property passes to multiple heirs as undivided fractional interests, none of them can sell or refinance without all the others agreeing. A house worth $400,000 with five heirs who can't agree is functionally worth $0 until someone files a partition action.

What "Common Law Marriage" Does (and Doesn't) Do

Texas recognizes informal (common law) marriage if the couple agreed to be married, lived together as spouses, and held themselves out as married. If those elements are met and proven, the surviving partner inherits as a spouse under intestacy.

The catch: proving common law marriage after one partner has died is hard. Courts want witness testimony, joint tax returns, joint bank accounts, and other evidence of the agreement to marry. A surviving partner who never filed jointly and has only verbal claims can face a long and expensive heirship dispute, often against the deceased's children or family.

The remedy is simple. Either file a Declaration of Informal Marriage with the county clerk, or get formally married. A 30-minute courthouse appointment prevents years of probate litigation.

What Beneficiary Designations Override

Some assets pass outside intestacy regardless of whether you have a will. Beneficiary designations override the intestacy statute (and override the will too):

• Retirement accounts (401(k), IRA, 403(b), pension)
• Life insurance policies
• Annuities
• Transfer-on-death (TOD) brokerage accounts
• Payable-on-death (POD) bank accounts
• Real estate held with right of survivorship
• Property in a living trust

Many Texas families discover after a death that the bulk of the deceased's wealth passed correctly via beneficiary designations, while a much smaller pool of unbeneficiaried assets created all the intestacy drama. Keep designations up to date and most of the worst-case scenarios fade.

When to Call an Attorney

If a family member has died intestate, an attorney can help the family decide whether full administration, an heirship determination, or a small estate affidavit is the right path. Call when:

• A family member has died without a will, and the family doesn't know how to handle the assets
• There's real estate in the deceased's name alone
• The deceased was on a second marriage with children from a prior relationship
• Family members disagree about who should inherit or serve as administrator
• The estate may qualify for a small estate affidavit and you want to confirm
• A creditor has filed a claim and the family doesn't know whether it's valid

Specific Texas Quirks Worth Knowing

A few intestacy details surprise even families who've done some homework:

Adopted children inherit as biological children under Texas Estates Code § 201.054. There's no distinction in the statute. Stepchildren who were never legally adopted do not inherit at all under intestacy, even after decades of living together as family.

Half-siblings inherit half as much as full siblings under § 201.057 — the older "half-blood" rule still applies in Texas. When the only surviving family is a mix of half-siblings and full siblings, the math gets uneven.

Posthumous children inherit if conceived before death and born within 10 months after. This includes children conceived via assisted reproductive technology, with specific timing rules in Texas Estates Code § 204.

Children born outside marriage inherit from the mother automatically and from the father if paternity was established during life or can be established posthumously. The standard of proof matters — and that's where these cases usually get contested.

Take Control of Your Legacy

The only way to override Texas intestacy law is to draft a valid will. It's not complicated and it's not expensive — a basic Texas will runs $500 to $1,500 for most families. A complete plan with powers of attorney and medical directives runs $1,000 to $2,500.

The cost of not doing it is paid by the family you leave behind. We've seen estates lose six figures to disputes that a $1,000 will would have prevented.

Dickey Law Group drafts wills and complete estate plans for families across The Woodlands, Spring, Conroe, Tomball, Humble, and Cypress. Schedule a free consultation — most plans can be drafted, signed, and notarized in two or three meetings.