27 Jan No Such Thing As AUTOMATIC Spousal Inheritance: Justin Crain, Partner
Now that I have your attention. Did you know that there are instances where a surviving spouse does not inherit from their deceased spouse? Finding out that the surviving spouse doesn’t inherit everything is difficult and often unbelievable because so many people falsely believe that everything is automatically owned by the surviving spouse.
There are several reasons why a surviving spouse does not automatically inherit everything. Three major reason are that:
- There is no requirement in Texas that you leave your half of the community estate to your surviving spouse;
- If you die without a Will, ownership is proven through laws of intestacy which requires a legal process; and
- If you die with a Will (married or not), your Will does not get legal effect until it is probated (Latin for proved) in a legal process. (see Texas Estates Code 256.001, “a Will is not effective to prove title to, or the right of possession of, any property disposed of by the Will until the Will is admitted to probate.”)
The spouse wrote a Last Will and Testament leaving their half of the community estate to someone else.
It is very important that Texans understand that when you are married in Texas, each spouse owns one-half of the community estate without restrictions. This means that each spouse has a right to direct their half of the property to someone other than their spouse if they choose to do so. The result is that some surviving spouses find out that their husband or wife wrote a Will leaving their half of the property to someone other than the surviving spouse.
The spouse has no or ineffective estate planning documents and/or has separate children from the surviving spouse.
When a spouse dies with no Will, Trust, or other estate documents directing the disposition of their estate, or when the documents that they did leave are outdated or unclear, there is a greater possibility of a contesting party successfully taking some or all the deceased spouse’s estate. Some examples include creditors making claims against the deceased spouse’s one-half of community property and other family and friends successfully claiming inheritance rights or other rights to assets. Even when such claims are unsuccessful sometimes the cost of defense is so high that the surviving spouse has little to nothing to inherit as the result.
As hard as it is to believe — If a married person dies without a Last Will and Testament or other estate documents directing their assets at death and that person has children separate from their current spouse, Texas law states that one-half of the community property goes to the deceased spouse’s separate children.
The surviving spouse must complete the probate process – nothing is “automatic”.
Surviving spouses are often surprised to learn they must complete the probate process to obtain 100% ownership of estate assets and/or distribute assets according to the directions left in the decedent’s Will. Often, surviving spouses overlook this necessity until they go to sell a jointly owned asset such as a home, close a bank account, move investments monies or other asset related activities.
The best course of action is to locate a trusted probate attorney and begin the probate process as soon as reasonably and emotionally possible. The longer a surviving spouse waits to open a probate case the more expensive and time consuming it can be. Completing a probate after the loss of a spouse maybe the last thing one wants to do but doing so saves children and loved ones the increased time and cost associated with probating TWO Wills at the time of the second spouse’s passing.
If you are married and want to ensure that your spouse inherits some or all estate assets or avoids the probate process in total, the good news is you can take steps to make sure that happens! Planning with an up-to-date and effective estate plan is the best way to ensure that your wishes are met. Explore different estate planning options by booking a free consultation with one of our attorneys.