Do I Really Need a Will? Won't My Spouse Inherit Everything Anyway?

Recently I spoke with an acquaintance who had narrowly survived a cardiac arrest. He was in the hospital, being closely monitored in preparation for triple bypass surgery. His wife had already told me there was a real danger he would not make it.

I asked my friend whether he had a will. He said no. He explained that he didn’t need one, because his wife would inherit his house by law. I already knew enough about his family circumstances to know he was — please pardon the pun — dead wrong. I asked him about his wishes, wrote a will for him, and took it to the hospital for him to sign the next morning.

I am happy to report that the patient both survived the surgery and inspired this blog post.

The experienced attorneys at Brousseau Naftis Erick & Massingill, P.C. have represented clients in will, trusts, estates and probate law matters for decades. For more information, contact us today for a no-obligation consultation.

You may have had a lawyer or financial professional tell you that, if you own property or have kids, you need a will. In response, you might have had one or both of the following thoughts:

1. I’m still young! I’ve got plenty of time before I need to worry about dying.
2. It doesn’t matter, because my spouse will inherit my stuff anyway. That’s fine with me.

Thought #1, sadly, amounts to wishful thinking. Death is one of the few guarantees life offers us. The chronological odds may be in our favor, but we cannot predict when strokes, accidents, and other bad things happen.

As for Thought #2, a more accurate statement would be:

If I don’t have a will, the family members chosen for me by the State of Texas will inherit my stuff. Those family members may not be the people I have in mind at all.

Who will inherit the property of a married person who doesn’t have a will?

Many married people – the ones who are not probate lawyers, anyway – tend to assume their spouses will inherit whatever property they have. That is often untrue in Texas. For a married person, who inherits depends on whether the property is separate or community property, but that’s just the beginning of a complex set of questions.

Separate property is property you owned before your marriage, or property that was given to you as a gift or inheritance during your marriage. Texas has different inheritance laws for separate real estate and separate personal property.

Separate real estate (e.g.: the condo you bought when you were single and still own as a rental property; the royalty interests in West Texas you inherited from your grandfather)

1. Separate real estate goes to your kids, subject to your spouse’s ability to occupy it for the rest of his or her life (if it is the marital homestead) or to occupy 1/3 of it for the rest of his/her life (if it’s not the homestead).
2. If you have no kids, half goes to your spouse and the other half is to be divided among your parents, siblings, nieces and nephews, depending on which of them have outlived you.
3. To your spouse, if both of your parents and all your siblings, nieces and nephews die before you do.

Separate personal property, which means separate property that is not real estate (e.g.: your childhood yo-yo collection, the IRA you inherited from your mom, the Volvo your aunt gave you when you graduated from business school)

1. Two-thirds goes to your kids and 1/3 to your spouse.
2. If you have no kids, all goes to your spouse.

Community property is property you acquired during your marriage, either from your spouse’s income or your own. This includes not just earnings from work but also income from all other sources, including income (e.g., rent, royalties, interest) generated from the spouses’ separate property. In a traditional marriage of wage earners who have been married many years and were not born to wealth, most of the spouses’ major assets (e.g., houses and retirement accounts) tend to be community property.

A key feature of community property in Texas is that, when a married person dies, the “community” ceases to exist. At that point, all the community property is split 50-50 between the surviving spouse and the estate of the deceased spouse. Thus, when you die, only YOUR half of the community property passes to your heirs or to the beneficiaries of your will. Your surviving spouse’s half of the community property is now owned solely by him or her, to be kept or disposed of as he or she may choose.

Here, then, is how the State of Texas will allocate your half of the community property in the absence of a will:

1. To your spouse, but only if (a) you have no kids or (b) all your kids are also your spouse’s kids.
2. To your kids, if you have one or more kids who are not also your spouse’s kids.

This last scenario – which means your kid(s) from another relationship will co-own the community property along with your surviving spouse – creates situations that can range from awkward and difficult (if the kids are under 18) to combustible (if your kids and surviving spouse have a less-than-ideal relationship). Most people would think twice before choosing such a provision in their wills.

Because there is a significant difference in who will inherit separate property and community property, potential heirs are easily incentivized to dispute whether valuable property is truly community or separate. Unfortunately, the evidence in these disputes can be difficult, and thus expensive, to piece together. The distinction between community and separate property must be addressed even if you sign a will, but your estate planning attorney can help you clarify which is which during your lifetime so that it does not become a feud upon your death.