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 without a will.

Key distinctions:

• Separate personal property and real property are treated differently.
• When descendants survive, the surviving spouse receives:
  • a one-third outright share of separate personal property; and
  • a one-third life estate in separate real property.

Division note: This section sets the spouse/descendant fractions; the descendants’ portion is divided under Sec. 201.101 (per capita with representation).

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.