The fans of the late PBS television series Downton Abbey will recall one of the most interesting characters was the Dowager Countess of Grantham, played with aplomb by British actress Maggie Smith. Her title of “Dowager Countess” was due to her status as the late Earl’s widow. This was because under English common law, the eldest son of a nobleman succeeded to the title and the lands of his father upon death. The son’s wife succeeded to his mother’s title. But what about the mother, in this case the former Countess? Well the English common law took care of her by a giving her legal status known as dower. That meant the surviving spouse of a deceased had a right to reside on her late husband’s property and receive a percentage of income from that property for her support. She retained her title, but was designated as a dowager. In the larger estates, she had a separate residence, called the dower house. All this terminated upon her death. Because of quirks in English law, members of the aristocracy could not change the succession rules to their lands by will. But that is the case here in Texas and most other of the United States.
“Intestate” means dying without having made a valid will. Without a will, Texas intestacy rules generally follow the common law of England. But the dower right does not because of the community property system that Texas inherited from Mexico, and because of the homestead occupancy right described below. A synopsis of Texas intestacy law follows.
Intestate Succession depends on Decedent’s Status. (Texas Estates Code §§ 201.001– 201.203)
Separate Property.
Single – no children:
Both parents living: the estate passes to each in equal portions.
One parent is dead: one-half passes to surviving parent, the other half passes to brothers and sisters, or their descendants. If there are no surviving brothers and sisters or descendants of them, the entire estate passes to surviving parent.
Both parents are dead, and brothers and sisters survive: the estate passes to them, or their descendants.
Both parents are dead and there are no siblings or their descendants: one-half of the estate passes to the maternal relatives, and the other half passes to the paternal relatives: first to the grandparents or their descendants, and then to great-grandparents or their descendants, and so forth. NOTE: Texas is a “laughing heirs” state; it is possible for the most distant relatives that can be found to inherit the decedent’s estate.
Single – children: estate passes to decedent’s children and their descendants.
Married – Children: Spouse receives one-third personal property and a life estate in one-third of the lands; Children receive two-thirds of the personal property, two-thirds of the lands in fee simple, and a future estate in the remainder of spouse’s life estate.
Married – No children: Spouse receives all of the personal property. Spouse receives one-half of the decedent’s land, in fee simple. The other half passes as if the decedent were single, unless there is no surviving parent, siblings, or descendants of the siblings, in which case the surviving spouse receives all of the lands.
Community Property (Texas Estates Code § 201.003)
Estate passes to surviving spouse if no child or other descendant of decedent survives the decedent or all of the surviving children or other descendants are also children of the surviving spouse.
If children or their descendants of the decedent are not of the decedent’s spouse, one-half of the community property is retained by the surviving spouse, and the decedent’s one-half passes to his children or their descendants.
Homestead Right of Surviving Spouse (Texas Estates Code §§ 102.005 & 102.006)
If the decedent is survived by his or her spouse or minor child, the spouse is entitled to occupy the homestead for so long as he or she chooses to occupy it. When the occupancy ceases, this right is extinguished. It is independent of title. If the property has been devised to some other person, that person takes it subject to the surviving spouse’s homestead occupancy. The property cannot be sold or partitioned out from under the homestead right, and the right is not extinguished by re-marriage. The right of occupancy of surviving minor children (and their guardian) ceases when all are no longer minors.
Disclaimer: This article is general information, not legal advice. Legal analysis and advice can only be given in the context of specific facts and circumstances.
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Special thanks to Robert J. Reagan, Esq. who wrote this post. Mr. Reagan is a partner at Reagan McLain & Hatch, L.L.P. in Dallas, and practices in all the federal and state courts in Texas. His practice focuses on representing businesses and individuals in general civil litigation, creditors’ rights, contested matters in bankruptcy cases, and probate and estate litigation. He has been in practice since 1990.
For more information: http://www.reaganmclain.com/
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It seemed like a nice feature when we bought the home. Two acres of vacant land with a nice border of trees and shrubs between us and the road. We knew that something would be built there eventually, but we weren’t very concerned. As long as it wasn’t a convenience store it would be ok, right? And, we could always protest along with the other neighbors.
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