will my spouse inheriNext in our continuing series on inheritance disputes, we address the rights of spouses under Texas law to collect a mandatory inheritance. Our last article dealt with the rights of creditors, and how the probate claims process can discharge a deceased person’s debt. Spouses of deceased persons (called “surviving spouses”) have an entirely different set of rights. Surviving spouses have inheritance rights that are entirely separate from the inheritance provided by will or heirship status. But some of those rights can be a double-edged sword. In some cases, community property rights may effectively decrease the surviving spouse’s inheritance.

Even When Death Does You Part, Texas Community Property Rules Keep You Together

Texas is a community property state. That means that all income earned during marriage is owned equally by both spouses. And when marital income is used to purchase property, that property becomes community property, owned equally by both spouses. In Texas divorces, a court has discretion to decide how much community property each spouse receives. When a spouse dies in Texas, there is no such discretion—no matter what, all community property is split equally between the surviving spouse and the deceased spouse’s estate. Note, however, that prenuptial and post marital agreements may alter these rules, change how community property is calculated, or even eliminate the concept of community property entirely.

After the death of a married person, disputes may arise over what counts as community property. For example, say a person enters marriage with a significant retirement account. During marriage, the person continues to make contributions to the account, and dividends are reinvested into the account. Even though the account started as separate property, it now has a mixed character—partly separate property and partly community property. When the account owner dies, the surviving spouse has an automatic claim to the community portion of the account, even if the deceased spouse’s will left the account to someone else. But how much of the account is community property? A Texas probate attorney can advise you on community property issues like these and, if necessary, make or defend a claim to disputed community property.

There are other ways that Texas community property rules can complicate the inheritance and distribution of a deceased person’s estate. For example, a person dies with a spouse and a child from a previous marriage. During their marriage, the deceased spouse purchased a truck, and the surviving spouse purchased a convertible. The truck was titled solely in the deceased spouse’s name, and the convertible was titled solely in the surviving spouse’s name. The deceased spouse left a will that conveys “all my vehicles” to the deceased spouse’s child. Even though each vehicle had a single title owner, both vehicles count as community property. That means that each spouse was the legal owner of 50% of the truck and 50% of the convertible.

In the scenario above, the child expected to inherit 100% of a truck, but is disappointed to receive only 50% of the truck. However, the child also receives an unexpected bonus—50% of the convertible. In situations like these, a Texas probate lawyer can help you untangle these situations and broker a deal with the unexpected co-owner of your inheritance.

Surviving Spouses Have Additional Statutory Rights That Can Increase Their Inheritance

Texas law provides surviving spouses with several benefits and protections that supplement their community property rights. These rights can effectively increase the share of their inheritance at the expense of the deceased person’s beneficiaries, heirs, and creditors.

  • Homestead right – A surviving spouse has the absolute right to use and occupy the marital homestead for the rest of that spouse’s life. The surviving spouse can exercise this right even if the homestead was the deceased spouse’s separate property, and even if the deceased spouse’s will gave the homestead to someone else. This right is limited to use and occupation of the homestead; in other words, the surviving spouse cannot sell the homestead. In addition, the surviving spouse is responsible for maintenance and upkeep of the homestead, paying the property taxes on the homestead, and making the interest payments, if any, on the homestead’s mortgage.
  • Set-aside of exempt property –  A surviving spouse has the right to use certain “exempt” property owned by the deceased spouse, including furniture, food and beverage, farming vehicles and equipment, clothing, two firearms, some jewelry, certain farm animals, and household pets. This right applies even if the deceased spouse’s will gifted the exempt property to someone else. The spouse can claim outright ownership over the exempt property if the deceased person’s estate is insolvent, meaning that the deceased spouse’s debt exceeds the value of their estate.
  • Allowance in lieu of other rights – If the deceased spouse did not leave a homestead or the exempt property described above, the surviving spouse may ask the court for a reasonable allowance to make up for this loss. A probate court can award the surviving spouse and the deceased person’s children up to $45,000 for a housing allowance and $30,000 for an exempt property allowance. Again, these payments would come out of the deceased spouse’s estate to the detriment of the deceased person’s creditors and the persons who would otherwise inherit the deceased person’s estate.
  • Family allowance – In addition to the rights above, surviving spouses have an additional right to a family allowance from the deceased spouse’s estate. First, the surviving spouse must present a sworn application to the court describing the needs of the spouse and (if applicable) minor and incapacitated children, along with a list of property separately owned by the surviving spouse and children before the death of the deceased spouse. After considering the circumstances, including the needs and the property already available, the probate court will then determine an amount of money sufficient for the maintenance of the surviving spouse and (if applicable) minor and incapacitated children for an entire year. The court will then order that the amount is paid from the deceased spouse’s estate, regardless of whether creditors had claims, and regardless of whether the funds were gifted to someone else via the deceased spouse’s will.

Sometimes, the surviving spouse’s interests are adverse to those who would otherwise inherit the deceased spouse’s estate. In those cases, the services of a probate lawyer are invaluable to asserting or defending against the spousal rights described above. If you are involved in a dispute over spousal rights, we recommend that you hire a Texas probate lawyer. Our Dallas lawyers are skilled in asserting and defending against spousal claims. Call us today to discuss your claim. Our offices also service Plano, Frisco, McKinney, Denton, Fort Worth, Garland, Irving, Austin, Houston, San Antonio, Nacogdoches, Lufkin, and Center.

In our next post, we will wrap up this series and relay some of the most important takeaways.