| Read Time: 3 minutes | Probate

After losing a spouse, the thought of going through probate may seem overwhelming. The good news is that not all estates must be probated.

In this post, we’ll answer the question, Does a surviving spouse need probate in Texas? Spoiler alert: probate is only necessary if the deceased spouse passes away owning property held solely in their name.

If you have any questions, don’t hesitate to contact Robbins Estate Law today.

Does a Surviving Spouse Need Probate in Texas?

The need for probate depends entirely on what kind of property is left in the deceased spouse’s (the decedent’s) estate. Probate is the process of collecting, valuing, and distributing the decedent’s property.

Probate isn’t necessary if your spouse dies without any assets or owns only assets that automatically transfer to someone else. Let’s go over the different categories of property to help determine if you need probate for your spouse’s estate.

Probate and Non-Probate Assets

Probate assets are those titled solely in the decedent’s name. Probate is only necessary if the decedent dies owning probate assets. A non-probate asset is anything that is jointly titled or has a beneficiary designation.

Examples of non-probate assets are IRA accounts, life insurance policies, or property titled as joint tenants with the right of survivorship. Texas law further divides property between married couples. 

Separate and Community Property

Knowing the distinction between separate and community property is necessary to determine the surviving spouse’s right to the property, not the need for probate. Again, probate hinges on whether the decedent left probate or non-probate assets.

In Texas, spouses can have two categories of property: separate and community. Separate property is any of the following:

  • Property acquired before the marriage;
  • A family gift or inheritance received during the marriage; or
  • Compensation awarded or received because of injuries sustained in an incident while married.

Separate property belongs completely to the spouse that obtains or receives it. 

Community property is any property acquired during the marriage. By law, both spouses have an equal claim to community property, and each spouse owns half of it.

What Rights Does a Surviving Spouse Have to the Deceased Spouse’s Property?

A common misconception is that the surviving spouse gets everything when their husband, wife, or partner dies. This isn’t always the case. For a Texas surviving spouse, rights to the decedent’s property depend on the types of assets, whether the decedent left a will, and who survives the deceased spouse. 

If your spouse passes away with a will that the court finds to be valid, the probate court will distribute the decedent’s estate according to the will’s terms. If there’s no will or the court finds that the will is invalid, the decedent’s property is distributed according to Texas intestate succession law.

But these laws are generic. They do not take any factors into account—other than a person’s relationship to the decedent. So if you want to be sure that your assets go to the right person, it is wise to get a will in place as soon as possible.

Spousal Rights to Community Property

Under Texas intestacy law, the surviving spouse retains his or her half of the community property.

The decedent’s half also goes to the surviving spouse if:

  • You and your spouse have children together, and your spouse has no other children; or
  • Your spouse has no children or surviving blood relatives.

Suppose you and your spouse share children, and your spouse also has children from a prior relationship. In that case, the decedent’s half of the community property will be equally divided among those other children.

Spousal Rights to Separate Property

Any property that is not community property (i.e., separate property) is distributed based on who survives the decedent.

If the deceased spouse has one or more descendants, like children or grandchildren, those descendants get two-thirds of the separate property. The remaining one-third goes to the surviving spouse. If the decedent has no descendants, then the surviving spouse gets all the separate property.

Keep in mind there are additional rules if the decedent dies owning land or if they pass away without a surviving parent, sibling, niece, or nephew. 

Contact Our Probate Lawyers

We know how daunting the probate process can seem, but you don’t have to go through it alone. At Robbins Estate Law, our team can help with all of your probate needs.

From answering questions to representing you during a probate hearing, we’re here to help make sure that your rights are protected. Founding attorney Kyle Robbins graduated at the top of his class and has the experience, skills, and knowledge you need.

To speak with one of our attorneys, call our office at (512) 851-1248 or reach us online to request a consultation.

Do you qualify for probate?

Fill out our quick questionnaire to determine if you need probate, what type of probate you may need, and estimated fees.

Author Photo

Kyle Robbins

Kyle Robbins is the founder and sole owner of The Law
Offices of Kyle Robbins. He received his J.D. with honors from the University of Texas School of Law and his B.S. in Food Chemistry and Microbiology from Oklahoma State University.

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