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What "intestate" means
A Texas resident dies "intestate" when they die without a valid will, OR with a will that fails to dispose of all property (in which case they die intestate as to the undisposed property). Tex. Est. Code Chapter 201 — the "Descent and Distribution" chapter — controls who inherits and in what proportions.
Texas intestate rules are a STATUTORY default. They don't necessarily reflect what the decedent would have wanted. The most common gap: longtime unmarried partners receive nothing under intestate rules (they're not "spouses" or "descendants"), even if they were the closest person in the decedent's life.
Community vs separate property — two parallel rules
Texas is a community-property state. Property the decedent owned at death falls into one of two characters:
- Community property — acquired during marriage, presumed community unless rebutted (Tex. Est. Code § 3.002 presumption; clear-and-convincing rebuttal)
- Separate property — owned before marriage, acquired by gift or inheritance, or certain personal-injury recoveries (Tex. Fam. Code § 3.001)
The distribution rules differ for each character. A decedent with both community and separate property has the two pools distributed under different rules to potentially different people.
Community property — § 201.003
Scenario 1: all decedent's children are also surviving spouse's children
The surviving spouse takes ALL community property. Decedent's children inherit nothing of the community at this stage — they'll typically inherit from the surviving spouse later (or be subject to a new marriage's community rules).
Scenario 2: any decedent's child is NOT a child of the surviving spouse
The community is divided:
- Surviving spouse keeps her/his own one-half of community property
- Decedent's one-half of community property passes to the decedent's children per stirpes (by representation)
This rule produces the classic blended-family inheritance fight: the surviving spouse gets half of the community house, the decedent's children from a prior marriage take the other half. The spouse and stepchildren may have to figure out how to live together or partition the property.
Scenario 3: no surviving descendants
The surviving spouse takes ALL community property.
Separate property — §§ 201.001, 201.002
Separate property distribution depends on what classes of relatives survive. Texas applies a tree-based scheme that distributes to the highest-priority surviving class.
Personal separate property (§ 201.002)
Spouse + descendants: spouse gets 1/3, descendants get 2/3 (per stirpes).
Spouse, no descendants: spouse gets all (subject to parents' rights in some cases).
Spouse + parents (no descendants): spouse gets all personal separate property.
Real separate property (§ 201.002)
Spouse + descendants: spouse gets a life estate in 1/3 of real separate property; descendants get the remainder. The spouse's interest is a "life estate" — possession only — not a deed-able fee simple.
Spouse, no descendants: spouse gets 1/2 of real separate property; the other 1/2 passes to the decedent's parents, siblings, or further-removed relatives under § 201.001.
No surviving spouse
Distribution follows Tex. Est. Code § 201.001:
- Descendants — children and their descendants, per stirpes
- Parents — both parents 50/50; if one survives, that one takes all unless decedent has siblings, in which case it's split
- Siblings and their descendants — per stirpes
- Grandparents and their descendants — split between maternal and paternal grandparents' lines
- State of Texas (escheat) — only if there are NO heirs in any of the above classes
Each class is exhausted before moving to the next. Living descendants block parents from inheriting; living parents block siblings; etc.
Adopted children — Tex. Est. Code § 201.054
Adopted children inherit from their adoptive parents the same as biological children. They generally do NOT inherit from their birth parents after adoption (with narrow exceptions for stepparent adoptions). The adoption fully replaces the legal parent-child relationship for inheritance purposes.
"Equitable adoption" — where someone was raised as a child but never formally adopted — is recognized in Texas for limited purposes, but typically does NOT confer intestate inheritance rights. The formal adoption decree matters.
Half-blood relatives — Tex. Est. Code § 201.057
Texas generally treats half-blood relatives (half-siblings, half-aunts/uncles) the same as full-blood relatives for intestate succession. The historic English common-law rule that half-bloods take less has been abolished.
Posthumous heirs — Tex. Est. Code § 201.056
A child conceived before but born after the decedent's death inherits if born alive. A child conceived AFTER the decedent's death (via cryopreserved sperm or embryos) presents harder questions; Texas case law and statutory updates have evolved. Specific scenarios require attorney consultation.
Common surprises
- Common-law spouses. Texas recognizes informal/common-law marriage (Tex. Fam. Code § 2.401). A common-law spouse inherits intestate just like a ceremonially married spouse — but PROVING the common-law marriage may require court declaration after the death.
- Estranged spouses. If you're separated but not divorced, your spouse still inherits intestate. Only a final divorce decree terminates spousal inheritance rights.
- Unmarried partners. Texas does not recognize domestic partnership for intestate purposes. An unmarried partner of 30 years inherits NOTHING unless named in a will or as a beneficiary.
- Stepchildren. Stepchildren who were never adopted inherit NOTHING from a stepparent under intestate rules. They DO inherit from a biological parent (the parent who married the stepparent).
- Pretermitted heirs. A child born or adopted AFTER the will was executed has limited rights under Tex. Est. Code § 255.052 — but this only applies to wills, not intestate distribution.
Determining heirship — affidavit of heirship
When the decedent dies intestate and has real property, the heirs typically establish their inheritance through an Affidavit of Heirship under Tex. Est. Code § 203.001. The affidavit is sworn by two disinterested witnesses who knew the decedent and the family, then recorded in the deed records. See our spoke on Texas affidavit of heirship.
Bottom line
Texas intestate succession applies a precise statutory scheme that depends on which family members survive and the character of property (community vs separate). The rules often produce results the decedent would not have wanted — especially in blended families, with unmarried partners, or where the decedent had specific wishes about particular bequests. The remedy is straightforward: write a will. Consult a Texas-licensed attorney if you are administering an intestate estate or want to avoid the default rules through proper estate planning.
Related guides
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