How Intestate Succession Works in Texas

Originally published on January 26, 2025

When a loved one dies without a will, the legal term for their estate plan—or lack thereof—is “intestate.” In Texas, this means the state steps in to determine how that person’s assets will be distributed. This system, called intestate succession, follows a strict formula based on family relationships. Understanding how these rules work is crucial—especially if you’re a surviving spouse, child, or other potential heir.

In this post, we’ll explain how intestate succession works in Texas, which relatives are prioritized, and how community property and separate property are treated differently. Whether you’re navigating a loved one’s estate or planning your own, this information can help you avoid surprises and protect your interests.

What Is Intestate Succession?

Intestate succession refers to the order of inheritance dictated by state law when someone dies without a valid will. These laws are found in the Texas Estates Code and are designed to distribute assets to the decedent’s closest living relatives.

The key factors in determining who inherits are:

Whether the decedent was married at the time of death
Whether the decedent had children, and if so, whether those children were from the current marriage
Whether the decedent owned separate property or community property
Whether other family members, like parents or siblings, are alive

Community Property vs. Separate Property

In Texas, the distinction between community and separate property significantly impacts inheritance:

Community Property: Property acquired during the marriage (except by gift or inheritance)
Separate Property: Property acquired before marriage or received by gift or inheritance during the marriage

This distinction determines what portion of the estate goes to the surviving spouse versus other heirs like children or parents.

If There’s a Surviving Spouse and Children

How assets are divided depends on whether the children are also the children of the surviving spouse.

Scenario 1: Children Are Also Children of the Surviving Spouse

The surviving spouse inherits all community property.
The children inherit all separate personal property, divided equally.
The spouse receives a one-third life estate in separate real property, and the children inherit the remaining two-thirds interest outright, plus remainder in the spouse’s one-third.

Scenario 2: Children Are from a Different Relationship

The surviving spouse keeps their half of community property.
The children inherit the decedent’s half of the community property.
The children also inherit all of the decedent’s separate personal and real property, subject to life estate rights of the spouse (in real property only).

If There’s a Surviving Spouse but No Children

The surviving spouse receives all community property.
Separate personal property is split—two-thirds to surviving parents or siblings, and one-third to the spouse. If no surviving parents or siblings, the spouse takes all.
Separate real property: the spouse receives a one-half interest, with the remainder going to parents or siblings. If none survive, the spouse takes all.

If There Is No Spouse

If the decedent was unmarried at the time of death, the estate goes to their children in equal shares. If no children, the order of succession is as follows:

Parents (equally shared)
If one parent is deceased, then half to the living parent and half to siblings
If no parents or siblings, then to grandparents, aunts/uncles, and cousins in that order
If no eligible relatives, the estate “escheats” to the State of Texas

What About Stepchildren and Unmarried Partners?

Under Texas intestate succession law, only biological and legally adopted children are recognized as heirs. Stepchildren and unmarried partners are not entitled to inherit anything unless they are included in a valid will.

This makes estate planning critical for blended families or long-term couples who are not legally married. Without a will, those relationships are not recognized by the probate court, no matter how long they’ve lasted.

Special Situations

Adopted Children

Adopted children have the same inheritance rights as biological children. However, unless a stepparent legally adopts their stepchild, that child has no rights to inherit under intestacy laws.

Posthumous Children

Children conceived before the decedent’s death but born afterward are treated as living children for inheritance purposes.

Half-Siblings

Half-siblings are treated equally to full siblings under Texas law.

Foster Children

Foster children generally do not inherit unless they are legally adopted by the decedent.

When the State Takes the Estate

If no eligible heirs are found—no spouse, no children, no parents, no siblings, and no extended relatives—the estate “escheats” to the State of Texas. This is extremely rare, as the state makes an exhaustive effort to find even distant heirs before claiming the estate.

The Importance of Affidavits of Heirship

In cases of intestate succession, especially for estates without formal probate, Texas law allows heirs to establish ownership of property using an affidavit of heirship. This sworn document, signed by disinterested witnesses, outlines the family tree and the decedent’s heirs.

While it’s not a substitute for full probate, an affidavit of heirship can be recorded in the property records to clarify title to real estate and help heirs sell or refinance the property.

Intestacy and Probate: What to Expect

Even without a will, an estate must still go through probate to legally transfer assets to heirs. A court-appointed administrator will be responsible for:

Gathering and valuing assets
Paying debts and taxes
Distributing the remainder according to intestacy laws

The probate process can be more time-consuming and expensive when there’s no will, especially if heirs are distant relatives or disputes arise over who should serve as administrator.

Why It’s Better to Have a Will

Texas intestate succession laws offer a fair default system—but it’s a one-size-fits-all solution. It does not account for the nuances of real families, blended households, or specific wishes.

Having a valid will allows you to:

Choose your heirs
Appoint a trusted executor
Minimize family disputes
Leave assets to friends, stepchildren, or charities

Without a will, the state—not you—decides who gets what.

Need Help Navigating Intestate Succession?

At Guerra Days Law Group, we help families across Texas navigate the complexities of probate and intestate succession. Whether you’re trying to settle a loved one’s estate or avoid these issues in your own planning, our attorneys provide practical, compassionate legal guidance every step of the way.

We can assist with heirship proceedings, affidavits of heirship, probate administration, and custom estate planning tailored to your goals. Don’t leave your legacy to chance—take control today.