Most people recognize the need for a will but put it off. First, it reminds us of our own mortality, which we’d rather not think about. Secondly, unless one is elderly or ill, we do not think death is imminent. In a previous blog, I talked about accidental death and how, very sadly, accidental deaths are growing in America, to “epidemic” proportions, according to some experts.
Married people are more likely to have wills than single people, but many do not. Those who do not may mistakenly believe their surviving spouse will inherit their entire estate. This may not actually be the case and depends on how assets are categorized: community property or separate property.
Community properties are those assets acquired during the marriage. Under Texas law, your surviving spouse will inherit all your community property if either you have no children or if all your children are also the children of your surviving spouse. If not, your half interest in the community property will go to your children, and your spouse will keep only their half interest.
Separate properties are assets you owned prior to marriage and its intestate distribution is more complex. Without children or other descendants, all your separate personal property would pass to your spouse. But if you have surviving parents or siblings, they would be entitled to half of the separate real property with the other half passing to the surviving spouse.
If, however, you are survived by a spouse and children, your spouse would be entitled to 1/3 of your separate personal property and a “life estate” (the right to use the property til their death) in 1/3 of your separate real property. The rest of the separate personal property would pass to the children of the deceased spouse.
Given today’s mobility, family unity weakens under the stresses of geographic separation. This tends to weaken the “automatic” guidelines which were in place in the event of death. Additionally, multiple marriages and the growth of mixed families have added significant complexity to the issue of how to divide assets in the event of a death. A will is a simple and relatively inexpensive way of sorting out these questions with an experienced and impartial attorney, insuring your wishes are carried out, and insuring the well-being of your spouse, your children, and any other loved ones in your life.