THE BASICS OF TEXAS INTESTATE SUCCESSION LAW
Gerry W. Beyer
Governor Preston E. Smith Regents Professor of Law
Texas Tech University School of Law
The ability to specify the new owners of property upon death is an important and powerful
privilege that each state grants to its citizens. The odds are, however, that you have not executed
a will and if so, you would be in good company. Many famous and wealthy people have died
intestate including President Abraham Lincoln and Texas billionaire Howard Hughes. Surveys
reveal that between 60-75% of Americans die intestate. Intestacy causes the decedent’s property
to pass to those individuals whom the state government believes the decedent would have wanted
to receive the decedent’s probate estate upon death. None of the decedent’s family members or
friends are allowed to present evidence to show that the decedent actually wanted his or her
property to pass to them or to a charity. This article provides an introduction into the operation
of Texas intestacy law.
I. Reasons Most Texans Die Intestate
Why do so many Texans fail to take advantage of their ability to write a will and control how
their property is distributed upon death?
A. Lack of Property
One of the most commonly cited reasons people do not have wills is that they own very
little property. There are, however, very important reasons for everyone, even persons with
limited estates, to have a valid will. For example, the surviving parent of a minor child has the
ability to nominate a guardian for the child’s person and property in the parent’s will. This is
better than forcing the court to make the selection because the court may choose a person the
parent would not have wanted to control the child’s personal or financial affairs. Another reason
to have a will is that just because the estate is small now, does not mean it will not be large at the
time of death. A person could win the lottery or a mail order sweepstakes, inherit a hefty sum of
money under intestacy, be a significant will beneficiary, or land a high-paying job. Additionally,
the person could die in a manner which gives the person’s estate a winnable survival action
against the individual or business that contributed to the death, such as a drunk driver or the
manufacturer of a defective vehicle.
B. Unaware of Importance
Many people are naive about the critical importance of having a will. They simply wander
through life without giving thought to what happens to their property upon death. Perhaps
worse, other individuals have serious misconceptions about at-death property distribution.
Apathy is a contributing factor to why some people do not prepare a will. As the cliché
goes, “You can’t take it with you,” and thus some people simply do not care.
An attorney-drafted will requires a person to spend money which the person might rather
spend on the necessities of life or recreation. Many people cannot afford even the “bargain”
wills some attorneys offer, and people with sufficient resources to incur the cost may have
“better” things to do with their money.
E. Time and Effort
Even for simple estates, the will preparation process requires a significant investment of
time. Here is a typical scenario. The client has an initial meeting with you. As you start to
gather the information you need to write the will, you will often discover that the client has not
given thought to all aspects of property disposition (e.g., secondary recipients if the primary
beneficiaries die before the client) or may need to supply you with additional documentation
(e.g., adoption decrees, divorce papers, property appraisals, etc.). Thus, after the client leaves,
the client must both ponder various aspects of the estate plan and gather material for your
review. The client then gets this information to your office in person or by mail, telephone, email,
or fax. You then conduct a second formal meeting, review a rough draft of the will, and
engage in a more detailed discussion of options. In a straightforward situation, this may be when
the client signs the will. In many cases, however, one or more additional meetings are
necessary. If you consider the client’s time spent on preparing, traveling, waiting, and meeting,
you can appreciate that will preparation requires clients to sacrifice sizable blocks of time and
expend considerable effort.
Wills may become extremely complex, especially if the estate is large enough to trigger tax
consequences. It is probably safe to say that most potential testators do not view complexity as a
stimulating challenge. Rather, complexity tends to dampen any enthusiasm that may exist about
executing a will.
G. Admission of Mortality
In the past, many people believed that they would not live long after executing a will, even
if they were then in good health. For many, this belief persists today. Because “personal death
is a thought modern [individuals] will do almost anything to avoid,” people procrastinate
(usually indefinitely) the preparation of a will as a conscious or unconscious defense against
admitting their own mortality. Thomas Shaffer, The “Estate Planning” Counselor and Values
Destroyed By Death, 55 IOWA L. REV. 376, 377 (1969).
H. Reluctance to Reveal Private Facts
To prepare a good will, you must inquire into your client’s personal and private
matters. For example, you need to know about children born out of wedlock, the value of
property, medical conditions such as a diagnosis of AIDS, cancer, or Alzheimer’s, and family
situations (e.g., marital discord and infidelity, uneasy relationships with children, etc.). Your
client may not want to open his or her private life for your inspection.
II. Historical Background
Early in the evolution of civilization, societies developed customs and laws to control the
transmission of a person’s property after death. Our modern intestacy laws are traced originally
to the Anglo-Saxons. The Norman Conquest of 1066 A.D. played a significant role in the
development of these rules. William the Conqueror was irritated that English landowners
refused to recognize his right to the English Crown after his victory. Accordingly, William took
ownership of all land by force and instituted the Norman form of feudalism. Under this system,
the Crown was the true owner of all real property with others holding the property in a
hierarchical scheme under which lower ranked holders owed various financial and serviceoriented
duties to higher ranked holders.
As a result, real property became the most essential element in the political, economic, and
social structure of the Middle Ages. The Crown and its tough royal courts controlled the descent
of real property. The basic features of descent included the following rules. (1) Male heirs
inherited real property to the exclusion of female heirs unless no male heir existed. The reason
underlying this discriminatory preference for male over female heirs was based on the feudal
incidents of ownership. One of the primary duties of lower ranked holders of property was to
provide military service to higher ranked holders. Under the then existing social climate, women
were deemed unable to perform these services and thus were not able to inherit realty if a male
heir existed. (2) If two or more males were equally related to the decedent, the oldest male
would inherit all of the land to the total exclusion of the younger males. This is the rule of
primogeniture. Primogeniture was applied because the Crown thought it was too impractical to
divide the duty to provide military services as well as to subdivide the property. (3) If there were
no male heirs and several female heirs, each female heir shared equally.
Before the industrial revolution, personal property was of lesser importance. There were no
machines or corporate securities about which to worry. Instead, most chattels were of relatively
little value such as clothing, furniture, jewelry, and livestock. Thus, the Crown permitted the
church and its courts to govern the distribution of personal property. The ecclesiastical courts
based distribution on canon law which had its foundation in Roman law. In general, personal
property was distributed equally among equally related heirs. There was no preference for male
heirs and the ages of the heirs were irrelevant.
After centuries of movement toward a unified system, the English Parliament passed the
Administration of Estates Act in 1925 which abolished primogeniture and the preference for
male heirs as well as providing uniform rules for all types of property. Most intestacy statutes in
the United States make no distinction based on the age and sex of the heirs nor between the
descent of real property and the distribution of personal property. However, Texas and a few
other states retain this latter common law principle and provide different intestacy schemes for
real and personal property under certain circumstances. See generally Darien A. McWhirter, The
Ancient Origins of Texas Probate Law, 49 TEX. B.J. 1061 (1986).
III. Basic Distribution Scheme
Chapter II of the Probate Code governs what happens when a person dies without a valid will
or dies with a valid will which does not encompass all of the person’s probate estate. When this
happens, the person’s probate property which is not covered by a valid will is distributed through
intestate succession. A person may die totally intestate, that is, intestate as to the person, if the
person did not leave any type of valid will. A person may also die partially intestate, that is,
intestate as to property, if the person’s valid will fails to dispose of all of the person’s probate
The intestate distribution scheme in Texas is derived mainly from three sections of the Probate
Code: § 38 (distribution of property of an unmarried decedent and the separate property of a
married decedent), § 45 (distribution of the community property of a married decedent), and § 43
(determination of the type of distribution). Below is a summary of these sections assuming that
the decedent died on or after September 1, 1993.
A. Individual Property Distribution (Unmarried Intestate)
The distribution of the property of an unmarried intestate is governed by Probate Code
§ 38(a). Real and personal property are treated the same.
1. Descendants Survive
If the unmarried intestate is survived by one of more descendants (e.g., children or
grandchildren), then all of the intestate’s property passes to the descendants. See § D, below, for
a discussion of how this distribution is done.
2. No Descendants Survive But a Parent Survives
The following distributions occur if the unmarried intestate has no surviving
descendants but does have at least one surviving parent.
a. Both Parents Survive
If both parents survived the intestate, each parent inherits one-half of the estate.
b. One Parent Survives Along With a Sibling or a Sibling’s Descendants
If only one parent survives and the intestate is also survived by at least one sibling
or a descendant of a sibling (e.g., niece or nephew), then the surviving parent receives one-half
of the estate with the remaining one-half passing to the siblings and their descendants. See § D,
below, for a discussion of how this distribution is done.
c. One Parent Survives but No Sibling or Descendant of a Sibling Survives
If one parent survives and there is no surviving sibling or a descendant of a sibling,
then the surviving parent inherits the entire estate.
3. No Surviving Descendants or Parents
If the unmarried intestate is survived by neither descendants nor parents, then the entire
estate passes to siblings and their descendants. See § D, below, for a discussion of how this
distribution is done.
4. No Surviving Descendants, Parents, Siblings or Their Descendants
If the unmarried intestate has no surviving descendants, parents, siblings or their
descendants, the estate is divided into two halves (moieties) with one half going to paternal
grandparents, uncles, cousins, etc. and the other half to the maternal side. Texas does not have a
laughing heir statute preventing these remote relatives from inheriting. If one side of the family
has completely died out, the entire estate will pass to the surviving side. See State v. Estate of
Loomis, 553 S.W.2d 166 (Tex. Civ. App.—Tyler 1977, writ ref’d).
5. No Surviving Heir
If the unmarried intestate has no surviving heir, the property will escheat to the state of
Texas under Property Code § 71.001.
B. Distribution of Community Property of Married Intestate
The distribution of the community property of an intestate who was married at the time of
death is governed by Probate Code § 45. Real and personal property are treated the same.
1. If No Surviving Descendants
If the married intestate has no surviving descendants, then all community property is
now owned by the surviving spouse. The surviving spouse (1) retains the one-half of the
community property that the surviving spouse owned once the marriage was dissolved by death
and (2) inherits the deceased spouse’s one-half of the community.
2. If Surviving Children or Their Descendants
Community property is distributed as follows if the married intestate has at least one
surviving child or other descendant.
a. No Non-Spousal Descendants
If all of the deceased spouse’s surviving descendants are also descendants of the
surviving spouse, then the surviving spouse will own all of the community property, that is, the
surviving spouse retains his or her one-half of the community and inherits the other half. Note
that for spouses dying before September 1, 1993, the deceased spouse’s one-half of the
community property was not inherited by the surviving spouse. Instead, the deceased spouse’s
share passed to the deceased spouse’s descendants.
b. Non-Spousal Descendants
If any of the deceased spouse’s surviving descendants are not also descendants of
the surviving spouse, then the community property is divided. The surviving spouse retains onehalf
of the community property, that is, the one-half the surviving spouse already owned by
virtue of it being community property. The descendants of the deceased spouse inherit the
deceased spouse’s one-half of the community property. All of the deceased spouse’s
descendants are treated as a group regardless of whether the other parent is or is not the surviving
C. Distribution of Separate Property of Married Intestate
Unlike most states, Texas in Probate Code § 38(b) has retained a vestige of the common law
distinction between the descent of real property and the distribution of personal property.
1. Surviving Descendants
a. Personal Property
The surviving spouse receives one-third of the deceased spouse’s separate personal
property with the remaining two-thirds passing to the children or their descendants. These
interests are outright.
b. Real Property
The surviving spouse receives a life estate in one-third of the deceased spouse’s
separate real property. The rest of the property, that is, the outright interest in two-thirds of the
separate real property and the remainder interest following the surviving spouse’s life estate
passes to the deceased spouse’s children or their descendants.
2. No Surviving Descendants
a. Personal Property
If there are no surviving descendants, all separate personal property passes to the
b. Real Property
(1) Surviving Parents, Siblings, or Descendants of Siblings
If there are no surviving descendants but there are surviving parents, siblings,
or descendants of siblings, the surviving spouse inherits one-half of the separate real property
outright with the remaining one-half passing to the parents, siblings, and descendants of siblings
as if the intestate died without a surviving spouse (that is, this one-half passes using the same
scheme as for individual property).
(2) No Surviving Parents, Siblings, or Descendants of Siblings
If the intestate has no surviving descendants, parents, siblings, or descendants
of siblings, the surviving spouse inherits all of the separate real property.
D. Type of Distribution
Whenever individuals such as children, grandchildren, siblings and their descendants,
cousins, etc. are heirs, you must determine how to divide their shares among them. See Prob.
Code § 43.
1. Per Capita
If the heirs are all of the same degree of relationship to the intestate, then they take per
capita, i.e., each heir takes the same amount. For example, if all takers are children, each
receives an equal share. If all children are deceased, then each grandchild takes an equal share.
2. Per Capita by Representation
If the heirs are of different degrees of relationship to decedent, e.g., children and
grandchildren, the younger generation takers share what the older generation taker would have
received had that person survived. For example, assume that Grandfather had three children; two
of whom predeceased Grandfather. One-third passes to the surviving child, with one-third
passing to the children of each deceased child (grandchildren). If each deceased child had a
different number of grandchildren, the shares of the grandchildren will be different. For
example, if one deceased child had two children, each gets one-sixth; if the other deceased child
had three children, each would receive one-ninth.
1. Wilma, a widow, dies intestate survived by her only son, Sammy, and her father,
Frank. Wilma’s entire estate passes to Sammy.
2. Harry, a widower, dies intestate survived by his mother, Mary, and his two brothers, Bruce
and Bob. One-half of Harry’s estate passes to Mary. Bruce and Bob each receive one-quarter.
3. Husband (H) and Wife (W) have three children, Amy (A), Brad (B), and Charles (C). All
three children are married and have children of their own. A has one child, Mike (M). B has
three children, Nancy (N), Opie (O), and Pat (P). C’s children are Robert (R) and Susan (S). H
died intestate with both community and separate property. In addition, H owned real and
personal property of each type.
a. How would H’s property be distributed? All of H’s community property is now owned
by W; W keeps the one-half she owned by virtue of it being community property and W inherits
H’s one-half. W receives one-third of H’s separate personal property. Each of A, B, and C
receive 2/9 of H’s separate personal property. W receives a life estate in one-third of H’s
separate real property. Each of A, B, and C receive 2/9 outright in H’s separate real property as
well as one-third of the remainder in W’s life estate.
b. Assume that both B and C predeceased H. How would H’s property be
distributed? All of H’s community property is now owned by W; W keeps the one-half she
owned by virtue of it being community property and W inherits H’s one-half. W receives onethird
of H’s separate personal property. A receives 2/9 of H’s separate personal property, each of
N, O, and P receive 2/27 and each of R and S receive 1/9. W receives a life estate in one-third of
H’s separate real property. A receives 2/9 outright in H’s separate real property plus one-third of
the remainder in W’s life estate. Each of N, O, and P receive 2/27 outright in H’s separate real
property plus 1/9 of the remainder in W’s life estate. Each of R and S receive 1/9 outright in H’s
separate real property plus 1/6 of the remainder in W’s life estate.
c. Assume that A, B, and C predeceased H. How would H’s property be distributed? All
of H’s community property is now owned by W; W keeps the one-half she owned by virtue of it
being community property and W inherits H’s one-half. W receives one-third of H’s separate
personal property. Each of the six grandchildren (M, N. O, P, R, and S) receive 1/9 of H’s
separate personal property. W receives a life estate in one-third of H’s separate real
property. Each of the six grandchildren receive 1/9 outright in H’s separate real property plus
1/6 of the remainder in W’s life estate.
d. How would the distributions be made under the facts in (a), (b), and (c) assuming that
A’s mother is X instead of W? Only the distribution of community property in each case is
different. In each situation, W would only retain her one-half of the community. H’s share of
the community property passes to his descendants because not all of his descendants are
descendants of W. In (a), each of A, B, and C would get 1/6 of the total community (1/3 of H’s
one-half). In (b), A would receive 1/6, each of N, O, and P, 1/18, and each of R and S, 1/12. In
(c), each grandchild would receive 1/12 of the total community.
4. Mother and Father, now deceased, had three children, Arthur, Bill, and Chris. Arthur died
survived by his wife, Peggy, and their two children, Linda and Ken. Bill is unmarried and
childless. Chris is married to Wendy and they have no children. Chris died intestate with both
community and separate property. In addition, Chris owned real and personal property of each
type. How would Chris’ property be distributed? Wendy receives all the community property,
all separate personal property, and one-half of the separate real property. Bill receives ¼ of the
separate real property and Linda and Ken each receive 1/8 of the separate real property.
IV. Treatment of Potential Heirs
A. Posthumous Heirs
Posthumous heirs are heirs conceived but not yet born when the intestate dies. Probate
Code § 41(a) provides that posthumous lineal heirs (e.g., children and grandchildren) will inherit
from the intestate, but posthumous non-lineal heirs (e.g., nieces and nephews) will not inherit.
B. Adopted Individuals
The ability of a person to adopt a non-biological person and cause that person to be treated
as a biological child was recognized thousands of years ago by societies such as the ancient
Greeks, Romans, and Egyptians. However, the concept of adoption was beyond the grasp of
common law attorneys and courts. The idea that a person could have “parents” other than the
biological mother and biological father was unthinkable. In fact, English law did not recognize
adoption until 1926. Accordingly, modern law relating to adoption developed in the United
States with Vermont and Texas taking the lead when their legislatures enacted adoption statutes
Probate Code § 40 details the effect of adoption on intestate distribution. The rights of three
parties are at issue: (1) the adopted child; (2) the adoptive parents; and (3) the biological
parents. Adopted children will inherit from and through the adoptive parents and, unlike in
many states, also from and through the biological parents. Adoptive parents are entitled to
inherit from and through the adopted child. The inheritance rights of the biological parents, on
the other hand, are cut off—biological parents do not inherit from or through their child who was
given up for adoption. See also Family Code §§ 162.017 (adoption of minors) and 162.507
(adoption of adults).
A decree terminating the parent-child relationship may specifically remove the child’s right to
inherit from and through a biological parent. See Family Code § 161.206.
Adoption by estoppel, also called equitable adoption, occurs when a “parent” acts as though
the “parent” has adopted the “child” even though a formal court-approved adoption never
occurred. Typically, the “child” must prove that there was an agreement to adopt and the courts
will look at circumstantial evidence to establish the agreement. Thus, when the “parent” dies,
the adopted by estoppel child is entitled to share in the estate just as if an adoption had actually
The result is different, however, if the adopted by estoppel child dies. The adoptive by
estoppel parents and their kin are prohibited from inheriting from or through the adopted by
estoppel child. The courts explain that it is the parents’ fault that a formal adoption did not take
place and thus the equities are not in their favor. As a result, the child’s biological kin are the
child’s heirs. See Heien v. Crabtree, 369 S.W.2d 28 (Tex. 1963).
C. Non-Marital Individuals
At common law, a child born outside of a valid marriage was considered as having no
parents (filius nullius). Thus, a non-marital child did not inherit from or through the child’s
biological mother or father. Likewise, the biological parents could not inherit from or through
the child. However, the non-marital child did retain the right to inherit from the child’s spouse
and descendants. If the child died intestate with neither a surviving spouse nor descendants, the
child’s property escheated to the government.
This harsh treatment of non-marital children, formerly referred to by pejorative terms such as
illegitimate children or bastards, has been greatly alleviated under modern law. In the 1977
United States Supreme Court case of Trimble v. Gordon, 430 U.S. 726 (1977), the Court held
that marital and non-marital children must be treated the same when determining heirs under
intestacy statutes. The Court held that discriminating against non-marital children was a
violation of the equal protection clause of the 14th Amendment.
One year later, the Supreme Court retreated from its broad holding in Trimble. In the five-four
decision of Lalli v. Lalli, 439 U.S. 259 (1978), the Court held that a state may have legitimate
reasons to apply a more demanding standard for non-marital children to inherit from their fathers
than from their mothers. The Court cited several justifications for this unequal treatment
including the more efficient and orderly administration of estates, the avoidance of spurious
claims, the maintenance of the finality of judgments, and the inability of the purported father to
contest the child’s paternity allegations.
Probate Code § 42(a) permits the non-marital child to inherit from and through the biological
mother (and vice versa) without any difference in the amount of maternity proof from that which
a marital child is required to produce. On the other hand, Texas imposes higher standards on a
non-marital child to inherit from the father. Section 42(b), in conjunction with the Family Code,
enumerates how a person may be considered the child of a man and thus entitled to inherit such
as when the child is born during marriage or within 300 days after the marriage ends, there is a
court decree of paternity, the man adopts the child, or the man executes a statement of paternity.
Texas also permits the non-marital child to prove paternity after the purported father has
died. In an attempt to limit the number of false claims, Texas imposes a higher standard of proof
of paternity in post-death actions, that is, there must be clear and convincing evidence of
paternity. DNA evidence is especially helpful in making this determination.
D. Children From Alternative Reproduction Technologies
Modern medical technology permits children to be born via reproduction techniques that
involve more than the traditional two people or years after the death of one of the
parents. Examples of these methodologies include (1) artificial insemination (donated semen
artificially introduced into the mother’s vagina or uterus), (2) in vitro fertilization (donated egg
and donated semen combined in a laboratory with the resulting embryo transferred to a donee),
(3) gamete intrafallopian transfer (donated egg and donated sperm combined in a donee’s
fallopian tube), and (4) embryo lavage and transfer (fertilized egg removed from the donor and
transferred to the donee’s uterus).
Several options exist regarding the parentage of children born as a result of these
techniques. The father could be (1) the supplier of the genetic material (sperm), (2) the husband
of the supplier of the female genetic material (egg), or (3) the husband of the woman who
gestates the child. Likewise, the mother could be (1) the supplier of the female genetic material,
(2) the wife of the man who supplies the male genetic material, or (3) the woman who gestates
the child even though this woman did not supply any genetic material (a surrogate mother).
Family Code §§ 160.701-.707 resolve some, but not all, of the issues which arise regarding the
individuals whom the law will treat as the parents of children conceived by means of assisted
conception. Generally, the donor of the sperm or egg is not considered as a parent and the birth
mother is deemed to be the mother. For the child to have a father, the father must be married to
the mother and the father must (1) provide the sperm, (2) consent in a record signed by both
husband and wife to the assisted reproduction, or (3) openly treat the child as a child.
The 2003 Texas Legislature authorized gestational agreements between a surrogate mother
and the intended parents in Family Code §§ 160.751-160.762. If the agreement is properly
validated, the woman who gave birth to the child will not be treated as the child’s
mother. Accordingly, this child would not inherit from or through the birth mother. Instead, the
mother and father of the child will be the intended parents and inheritance rights will accrue
A stepchild is a child of a person’s spouse who is not a biological or adopted child of the
person. Stepchildren may not inherit from their stepparents under Texas law.
F. Half-Blooded Collateral Heirs
The term “half-blood” refers to collateral relatives who share only one common
ancestor. For example, a brother and sister who have the same mother but different fathers
would be half-siblings. On the other hand, if the brother and sister have the same parents, they
would be related by the “whole-blood” because they share the same common ancestors.
At common law, half-blooded heirs could not inherit real property from a half-blooded
intestate although they were entitled to inherit personal property. This strict rule with its
emphasis on blood relationships has been modified by the states. States adopt one of three
modern approaches: (1) The majority of states have totally eliminated the distinction between
half- and whole-blooded relatives in determining inheritance rights. Thus, half-blooded
collaterals inherit just as if they were of the whole-blood. (2) Some states like Texas adopt the
Scottish rule which provides that half-blooded collaterals receive half shares. (3) A few states
permit half-blooded collateral heirs to inherit only if there is no whole-blooded heir of the same
degree. Remember that the distinction between whole and half-blooded heirs is relevant only if
distribution is being made to collateral heirs of the intestate.
A simple way to determine the proper distribution to half and whole-blooded heirs under
Probate Code § 41(b) is to calculate the total number of shares by creating two shares for each
whole-blooded heir and one share for each half-blooded heir. Each whole-blooded heir receives
two of these shares and each half-blooded heir receives one. For example, if there are three
sibling heirs, Whole Blood Arthur, Half Blood Brenda and Half Blood Charlie, four shares
would be created (two for Arthur and one each for Brenda and Charlie). The estate would be
distributed with Arthur receiving two shares (1/2 of the estate) and Brenda and Charlie receiving
one share each (1/4 of the estate).
G. Non-United States Citizens
At common law, a non-citizen could not acquire or transmit real property through
intestacy. This rule made sense because the landowner owed duties to the Crown which would
be difficult to enforce if the landowner was not a citizen. On the other hand, non-citizens from
friendly countries could both acquire and transmit personal property through intestacy.
Under Probate Code § 41(c), non-citizens are treated no differently than citizens when it
comes to inheritance rights. Note, however, that during the World Wars, the United States
government restricted the inheritance rights of citizens of enemy nations.
H. Unworthy Heirs
Forfeiture refers to a common law principle which caused all the property of a person
who was convicted of a felony to be forfeited to the government so there was no property for the
person’s heirs to inherit. Article I, § 21 of the Texas Constitution prohibits forfeiture and
Probate Code § 41(d) restates this prohibition. Note, however, that under federal law, a person
convicted of certain drug offenses forfeits a portion of the person’s property to the
government. 21 U.S.C. § 853.
2. Civil Death
Under the law of some states, persons who are convicted of certain serious crimes,
especially if the sentence is for life, are treated as being civilly dead. A civilly dead person may
lose a variety of rights such as the ability to contract, the right to vote, and the right to maintain a
lawsuit. The issue which then arises is whether the person’s property passes to the heirs as if the
person had actually died. Texas does not recognize civil death and thus property passes to a
person’s heirs only upon a biological death. See Davis v. Laning, 19 S.W. 846 (1892).
3. Corruption of the Blood
Corruption of the blood refers to a common law principle which prevented a person
from inheriting land if the person was convicted or imprisoned for certain offenses, especially
treason and other capital crimes. Article I, § 21 of the Texas Constitution prohibits corruption of
blood and Probate Code § 41(d) restates this prohibition. Accordingly, an imprisoned person,
even one on death row, may inherit property.
4. Heir Killing Intestate
To prevent murderers from benefiting from their evil acts, most state legislatures have
enacted statutes prohibiting murderers from inheriting. These provisions are often referred to as
slayer’s statutes. Probate Code § 41(d), however, only applies if a beneficiary of a life insurance
policy is convicted and sentenced as a principal or accomplice in willfully bringing about the
death of the insured. Texas courts resort to the constructive trust principle to prevent the
murdering heir from inheriting. Legal title does pass to the murderer but equity treats the
murderer as a constructive trustee of the title because of the unconscionable mode of its
acquisition and then compels the murderer to convey it to the heirs of the deceased, exclusive of
the murderer. See Pritchett v. Henry, 287 S.W.2d 546 (Tex. Civ. App.—Beaumont 1955, writ
The property of a person who committed suicide was subject to special rules at
common law. If the intestate committed suicide to avoid punishment after committing a felony,
the intestate’s heirs took nothing. Instead, the real property escheated and personal property was
forfeited. However, if the intestate committed suicide because of pain or exhaustion from living,
only personal property was forfeited and real property still descended to the heirs. Article I, § 21
of the Texas Constitution abolishes these common law rules and thus the property of a person
who commits suicide passes just as if the death were caused by some other means. Probate Code
§ 41(d) restates the Constitutional provision.
V. Other Intestacy Issues
A. Choice of Law
Issues regarding the transfer of real property at death are governed by the law of the state in
which the land is located. On the other hand, the law of the decedent’s domicile at the time of
death governs personal property matters. Thus, you may need to apply the probate law of several
states to determine the proper distribution of a decedent’s estate.
To be an heir, the individual must outlive the decedent. At common law, survival for only a
mere instant was sufficient. This rule lead to many proof problems as family members tried to
establish that one person outlived the other or vice versa. Some of these cases read like horror
novels as the courts evaluate evidence of which person twitched, gurgled, or gasped longer. See
Glover v. Davis, 366 S.W.2d 227 (Tex. 1963).
To remedy this problem, Probate Code § 47 imposes a survival period of 120 hours (5
days). If a person survives the decedent but dies prior to the expiration of the survival period, the
property passes as if the person had actually predeceased the decedent.
C. Assignment or Release of Inheritance
1. Before Intestate’s Death
Because a living person has no heirs, an heir apparent does not have an interest which
rises to the level of being property. Instead, the hopeful heir’s interest is a mere
expectancy. The person whom the heir apparent hopes will die intestate may prevent the
expectation from being fulfilled by taking a variety of steps such as writing a will, selling the
property, or making a gift of the property. Accordingly, an heir apparent has nothing to transfer.
The heir apparent, however, may agree (1) to transfer the inheritance once received, or (2) not
to claim a future inheritance. As long as the agreement meets all the requirements of a contract
(e.g., offer, acceptance, and consideration), the court is likely to enforce the agreement if the heir
apparent fails to perform upon the intestate’s death. See Mow v. Baker, 24 S.W.2d 1 (Tex.
Comm’n App.—holding approved 1930) and Birk v. First Wichita Nat’l Bank of Wichita Falls,
352 S.W.2d 781 (Tex. Civ. App.—Fort Worth 1961, writ ref’d n.r.e.) (the court made the
anomalous statement that “[a]n expectancy may be conveyed” but actually decided on contract
2. After Intestate’s Death
Once an heir receives the property through intestate succession, the heir may assign
his/her interest in the property to a third person under Probate Code § 37B. Unlike with a
disclaimer under § 37A, the heir will be liable for transfer taxes and the property will become
subject to the creditors of the heir.
An heir may disclaim or renounce the person’s interest in the intestate’s estate. In the normal
course of events, heirs do not disclaim. Most people like the idea of getting something for
free. However, there are many good reasons why an heir might desire to forego the offered
bounty. Four of the most common reasons are as follows: (1) the property may be undesirable or
accompanied by an onerous burden (e.g., littered with leaky barrels of toxic chemical waste or
subject to back taxes exceeding the value of the land); (2) the heir may believe that it is wrong to
benefit from the death of another and refuse the property on moral or religious grounds; (3) an
heir who is in debt may disclaim the property to prevent the property from being taken by the
heir’s creditors; and (4) the heir may disclaim to reduce the heir’s transfer tax burden (a
“qualified disclaimer” under I.R.C. § 2518).
Probate Code § 37A provides the formal requirements for effectuating a disclaimer. The heir
must disclaim in a written and acknowledged (notarized) document. The writing must be filed in
the court handling the estate of the decedent not later than 9 months after the deceased’s
death. The heir must give notice of the disclaimer to the executor or administrator of the estate
by personal service or by registered or certified mail.
The heir or beneficiary may “pick and choose” which assets to disclaim but if the person
accepts the property, the right to disclaim is waived. Even a relatively small exercise of
dominion or control over the property may prevent disclaimer. See Badouh v. Hale, 22 S.W.3d
392 (Tex. 2000) (holding that a beneficiary who used property she expected to receive under a
will as collateral for a loan prior to the testator’s death could not disclaim because such a use was
the exercise of dominion and control).
Once a valid disclaimer is made, the disclaimant is treated as predeceasing the person from
whom the disclaimant is taking. The disclaimed property then passes under intestacy as if the
heir had died first. The disclaiming heir cannot specify the new owner of the disclaimed
property. See Welder v. Hitchcock, 617 S.W.2d 294 (Tex. Civ. App.—Corpus Christi 1981, writ
ref’d n.r.e.) (holding that the disclaimed property passes as if the disclaiming person is dead visà-
vis the disclaimed property, not the entire estate).
Once made, a disclaimer is irrevocable.
Disclaimers are an effective method for a debtor to prevent property to be inherited from
falling into the hands of a creditor. The disclaimer is not a fraudulent conveyance and thus it
may not be set aside by the disclaimant’s creditors. However, the United States Supreme Court
has held that a disclaimer will not defeat a federal tax lien. Drye v. United States, 528 U.S. 49
An advancement is a special type of inter vivos gift. The advancer (donor) anticipates
dying intestate and the advancee (donee) is an individual who is likely to be one of the
advancer’s heirs. Although the gift is irrevocable and unconditional, the advancer intends the
advancement to be an early distribution from the advancer’s estate. Thus, the advancee’s share
of the advancer’s estate is reduced to compensate for the advancement.
When the advancer dies intestate, the advanced property is treated as if it were still in the
advancer’s probate estate when computing the size of the intestate shares. Thus, the advancee
receives a smaller share in the estate because the advancee already has part of the advancer’s
estate, that is, the advancement. This equalization process is referred to as going into hotchpot.
Probate Code § 44 provides that property given during an intestate’s life to an heir is an
advancement only if (1) the decedent acknowledges the advancement in a contemporaneous
writing at the time of or prior to the transfer or (2) the heir acknowledges in writing, at any time,
that the transfer of property is be treated as an advancement.
Here are some examples showing how advancements operate under Texas law.
1. Intestate had three children, Arthur, Brenda, and Charles. Intestate made a $100,000
advancement to Arthur. Intestate died with a distributable probate estate of $500,000. What is
the proper distribution of Intestate’s estate?
Arthur receives $100,000, Brenda receives $200,000, and Charles receives $200,000. Because
the $100,000 gift to Arthur was an advancement, that amount is treated as if it were still in
Intestate’s estate. Thus, Intestate’s estate is distributed as if it contained $600,000. Intestate had
three children and thus each child is entitled to a per capita share of $200,000. Because Arthur
has already received $100,000 by way of the advancement, he is entitled only to an additional
$100,000 from Intestate’s estate. Brenda and Charles each receive their share from Intestate’s
estate. The hotchpot process ensures that each child receives an equal share from Intestate
accounting for both inter vivos and at-death transfers.
2. Intestate had three children, Arthur, Brenda, and Charles. Intestate made a $100,000
advancement to Arthur. Intestate died with a distributable probate estate of $50,000. What is the
proper distribution of Intestate’s estate?
Arthur receives none of Intestate’s estate, Brenda receives $25,000 and Charles receives
$25,000. Like other inter vivos gifts, advancements are irrevocable. Thus, Arthur is under no
obligation to actually return the advanced amount to Intestate’s estate. Arthur is not indebted for
the advanced amount. Instead, Arthur simply does not share in Intestate’s estate because he has
already received property in excess of the share to which he would be entitled under a hotpotch
computation. Thus, Intestate’s entire estate is distributed to Brenda and Charles.
3. Intestate had three children, Arthur, Brenda, and Charles. Intestate advanced two assets
to Arthur, a house worth $100,000 at the time of the advancement and a car worth $30,000 at the
time of the advancement. Intestate died with a distributable probate estate of $500,000. At the
time of Intestate’s death, the house had appreciated to $300,000 and the car had depreciated to
$1,000. What is the proper distribution of Intestate’s estate?
Arthur receives $80,000, Brenda receives $210,000, and Charles receives
$210,000. Advancements are valued as of the date of the advancement under Probate Code
§ 44(b). Thus, subsequent appreciation and depreciation of advanced property is ignored when
going into hotchpot. The house valued at $100,000 and the car valued at $30,000 come into
hotchpot. The value of the hotchpot, that is, advancements plus Intestate’s estate, is
$630,000. Each of the three children is entitled to $210,000. Because Arthur already received
advancements valued at $130,000, he receives only $80,000 from the estate. Brenda and Charles
each receive a full $210,000 share because neither of them had received an advancement.
4. Intestate had three children, Arthur, Brenda, and Charles. Intestate made a $100,000
advancement to Arthur. Arthur died survived by his two children, Sam and
Susan. Subsequently, Intestate died with a distributable probate estate of $500,000. What is the
proper distribution of Intestate’s estate?
Under Probate Code § 44(c), the advancement is not considered because Arthur did not
survive Intestate and thus hotchpot does not occur unless Intestate specified in writing that the
advancement is to be brought into hotchpot even if Intestate predeceases Arthur. Accordingly,
Brenda and Charles would each receive 1/3 of Intestate’s probate estate (approximately
$166,666) while Sam and Susan would each receive 1/6 (approximately $83,333). The policy
behind this approach is that the advancee’s heirs may not have received the advanced property or
its value from the advancee’s estate.
The analogous concept to advancements in a will context is called satisfaction and is governed
by Probate Code § 37C.
F. Equitable Conversion
If the intestate was in the midst of a real estate transaction at the time of death, it may be
significant to determine whether the intestate’s interest is real or personal property, especially if
the intestate was married and the property is separate. Texas courts hold that equitable
conversion occurs. Thus, after a contract for the purchase and sale of real property is signed but
before closing, the seller is treated as owning personal property (the right to the sales proceeds)
and the buyer as owing real property (the right to specifically enforce the contract). See Parson
v. Wolfe, 676 S.W.2d 689 (Tex. App.—Amarillo 1984, no writ).
G. Ancestral Property
The common law policy of keeping real property in the blood line of the original owner lead
to the development of the principle of ancestral property. This doctrine applied if an individual
inherited real property and then died intestate without surviving descendants or first line
collateral relatives. Under this doctrine, real property inherited from the intestate’s paternal side
of the family would pass to the paternal collateral relatives and property inherited from the
maternal side would pass to the maternal collateral relatives.
Probate Code § 39 provides that the doctrine of ancestral property does not apply in Texas by
stating that the intestate is treated as the original purchaser of all the intestate’s property.
H. Liability for Debts of Predeceased Intermediary
Heirs are entitled to their full inheritances without reduction for debts owed by a
predeceased intermediary. It does not matter that the predeceased intermediary owed the debt to
the intestate or to third parties. In other words, a debt owed to the intestate is not charged against
the intestate share of any individual except the actual debtor. If the debtor fails to survive the
intestate, the debt is not taken into account in computing the intestate share of the debtor’s
descendants. See Powers v. Morrison, 30 S.W. 851 (Tex. 1895).