Texas Estates Code Sec. 201.002: Separate Estate of an Intestate

This section governs how the separate property of a married person passes when the person dies intestate. The distribution depends on whether the decedent is survived by a spouse, descendants, or both—and on whether the property is real or personal.

The Statutory Rule

Sec. 201.002. SEPARATE ESTATE OF AN INTESTATE.

(a) If a person who dies intestate leaves a surviving spouse, the estate, other than a community estate, to which the person had title descends and passes as provided by this section.

(b) If the person has one or more children or a descendant of a child:

(1) the surviving spouse takes one-third of the personal estate;

(2) two-thirds of the personal estate descends to the person's child or children, and the descendants of a child or children; and

(3) the surviving spouse is entitled to a life estate in one-third of the person's land, with the remainder descending to the person's child or children and the descendants of a child or children.

(c) Except as provided by Subsection (d), if the person has no child and no descendant of a child:

(1) the surviving spouse is entitled to all of the personal estate;

(2) the surviving spouse is entitled to one-half of the person's land without a remainder to any person; and

(3) one-half of the person's land passes and is inherited according to the rules of descent and distribution.

(d) If the person described by Subsection (c) does not leave a surviving parent or one or more surviving siblings, or their descendants, the surviving spouse is entitled to the entire estate.

Explanation

What it does: This section determines how a married decedent’s separate property passes when the decedent dies intestate.

Key distinctions:

• Separate personal property and separate real property (land) are treated differently.
• The result depends on whether the decedent is survived by descendants.

If the decedent has one or more children or descendants of a child (Subsection (b)):

• The surviving spouse takes one-third of the separate personal estate.

• The remaining two-thirds of the separate personal estate descends to the decedent’s child or children (and descendants of a child), divided under Sec. 201.101.

• For separate real property (land), Subsection (b)(3) creates three distinct interests:

  1. Spouse’s life estate: The surviving spouse has a life estate in one-third of the decedent’s land.
  2. Children’s fee simple interest: The decedent’s child or children (and descendants of a child) take the remaining undivided two-thirds interest in the land in fee simple, as tenants in common.
  3. Children’s remainder interest: The decedent’s child or children (and descendants of a child) also take the remainder interest in that same one-third that is subject to the surviving spouse’s life estate. That remainder interest is divided under Sec. 201.101.

Clarification: The remainder interest is the future ownership of the same one-third of the land in which the surviving spouse holds a life estate. It is not the other two-thirds of the land.

If the decedent has no child and no descendant of a child (Subsection (c)):

• The surviving spouse takes all of the personal estate.
• The surviving spouse takes one-half of the decedent’s land outright (no remainder).
• The remaining one-half of the decedent’s land passes under the rules of descent and distribution (see Sec. 201.001).

If there is no surviving parent, sibling, or descendant of a sibling (Subsection (d)):

• The surviving spouse takes the entire estate.

Key concept: This section applies only to separate property. Community property is governed by Sec. 201.003.

Practice note: Determining whether property is separate or community is a threshold issue governed by Texas marital property law.