Blended marriages: The Unintended Consequences of Dying without a Will or Trust
Author: Montague Morgan
Sadly, the rules of descent and distribution which apply if someone dies without a will or trust may provide an unexpected outcome. It has been our experience that many people have common misunderstandings regarding how these rules are applied and are unaware of nuances which modify distributions under specific circumstances. In this day and age of mixed and blended families, it is unlikely that anyone would want old statutory descent and distribution laws to control who receives or manages assets earned over a lifetime of hard work.
A common misconception we encounter is that many people believe their spouse will inherit everything when they die intestate (without a valid will or a valid trust which otherwise fully disposes of his or her assets), which is often their underlying intention. However, that is simply not always the case in Texas. Pursuant to the rules of descent and distribution, if you die intestate and have children from outside your current marriage, then your half interest of all community property in your marriage will be shared amongst your children instead of being passed along to your surviving spouse who owns the other half.
Under most circumstances, this is an unwelcome result for the surviving spouse who now owns their homestead with their deceased spouse’s children, whom likely cannot share in payment of the mortgage, upkeep and other related expenses. Then without a judicial partition or the agreement of deceased spouse’s children who are co-owners, the surviving spouse will likely not be able to sell the marital homestead. This situation is further complicated if any of the deceased spouse’s children are minors, because minors lack the legal capacity to consent to the sale of their real property which must be granted to an adult through judicial means and with court supervision, which will likely substantially increase the time and cost involved in selling real property.
The complications only become worse if the deceased spouse dies intestate owning separate property, which generally speaking could include property acquired by gift, inheritance, or before marriage. Under such circumstances, the deceased spouse’s children will inherit two thirds of any personal separate property and the entirety of your separate real property owned by the deceased spouse, while the surviving spouse only receives a life estate in one third of the separate real property. That is, the home you lived in believing it was yours, may actually be owned by your spouse’s children. And if your spouse did not have children, you may be sharing ownership with your spouse’s parents and/or their descendants.
Imagine a situation where your husband or wife dies without a Will and has two minor children who live with their other parent…your spouse’s ex. Those children, controlled by their custodial parent, now own half of your spouse’s community property assets and an even larger percentage of your spouse’s separate property assets. This can be a nightmare come true for any widow or widower who instantly loses half of their estate.
These are not the sorts of results most people envision or could even fathom. The attorneys at Beck & Associates, PLLC stand ready to help and provide clarity in an unclear world. Please contact us to schedule an estate planning consultation.