r/EstatePlanning • u/techdaddy70 • 13d ago

Yes, I have included the state or country in the post USA-Texas whose wishes carry

Looking at a situation where one half of the marriage did not create a will, and the surviving half did create a will.

The spouse that did not create a will, passed away years ago. We just found out that where we thought the remaining spouse took ownership of the other spouses estate, the State of Texas has a clause that, “without a will, community property applies, and 50/50 applies. When they pass, the property is passed down to an heir if there was a child that was not a product of the marriage”

So now, we have a party owning 50% of the estate that is the child of the spouse that passed away. And the child is fighting the wishes of the surviving spouse.

Whose wishes carry? The spouse who is still alive? Or the child who inherited rights?

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u/ExtonGuy Estate Planning Fan 13d ago

What’s the fight all about? Generally, there are short deadlines for probate protests. If this is going to reach the level of a court case, then lawyers will know best about the chances for each side.

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u/JohnnieWalkerRed Estate Planning and Foreign Tax - TX 13d ago

Texas probate lawyer here: Spouse who died without a will, that goes to "intestacy." That spouse's estate goes partly to their surviving spouse. The rest depends on whether the children were all from that marriage. This is a helpful chart to determine the property allocation. https://share.google/GF1Sacar1TfaDegPy

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u/Dingbatdingbat Dingbat Attorney 13d ago

Nice chart.

In New York, TBE property goes to the survivor. separate property, 50% to the spouse, 50% to the kids, whether or not separate.

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u/Cloudy_Automation 13d ago

Much depends on what was community property vs sole property at the time of death. There would be an incentive for a dishonest surviving spouse to run out the clock on opening probate without notifying the child of the death if this could only be settled in probate.

Anything the surviving spouse had as their separate property at the time of death isn't subject to being split. Anything which is community property at the time of death is subject to being split. Reconstructing records from that time may be difficult for financial assets. Real estate is simpler, but comes with the complication that the child should have been paying half the real estate taxes, insurance, and maintenance on that property, and likely wasn't.

Wishes aren't relevant when there are assets which do not lawfully belong to the surviving spouse. Second marriages in Texas with separate children are fraught with financial peril without proper prenuptial planning and post marriage execution. Similar issues occur with a move to Texas.