Sorry for the ambiguity - trying not to be identifiable. The question I am asking - If there are 2 children, does it make sense for a deceased child's widow to receive 1/2 of everything or should that half go to the deceased child's adult children? I am a grandchild and my dad is the deceased. My sibling and I were willed 1/2 of what they had left and my mother, who has since remarried, feels like all of the money we inherited should belong to her and not us. Is it appropriate for her to be upset?
No relative of the deceased is entitled under Texas law to receive anything, with an obvious exception.
The exception regards the spouse (and any MINOR issue) of the deceased.
We need not discuss minors, as none were noted above!
Texas is a TRUE community property state.
According to Texas law, the surviving spouse is entitled to receive a MINIMUM of 50% of the deceased's estate.
Does a Surviving Spouse Have to Make An Election?
Texas is a community property state. There is NO right of election. A surviving spouse owns one-half of the community interest without restrictions. See Tex. Fam. Code. 3.002. In the event the decedent attempted to dispose of more than his or her share of the community property by a will, the surviving spouse must then decide whether to take under the will as provided, or take his or her own property and forego the bequest.
Surviving Spouse Homestead Rights
Article XVI, sec. 51 of the Texas Constitution sets forth who can receive homestead property upon the death of an owner if he or she is survived by a spouse or a minor child. A surviving spouse is entitled to no less than a life estate in any property used as a homestead by the deceased spouse in Texas. See Tex. Const. art XVI, sec. 52.
Surviving Spouse Rights In Exempt Property
The surviving spouse may claim exempt personal property described in section 42.002(a), Property Code.
Allowance In Lieu Of Exempt Property
The Texas Estates Code, section 353.053, also provides for an allowance in lieu of exempt property, stating:
(a) If all or any of the specific articles of exempt property described by Section 353.051(a) are not among the decedent's effects, the court shall make, in lieu of the articles not among the effects, a reasonable allowance to be paid to the decedent's surviving spouse and children as provided by Section 353.054.
(b) The allowance in lieu of a homestead may not exceed $45,000, and the allowance in lieu of other exempt property may not exceed $30,000, excluding the family allowance for the support of the surviving spouse, minor children, and adult incapacitated children provided by Subchapter C.
Family Allowance
A surviving spouse is also entitled to family allowance for one year payable from decedent's estate. Texas Estates Code section 353.102.
Marital Agreements
Marital agreements which are often referred to as prenuptial agreements, ante-nuptial agreements, and post-nuptial agreements, can waive or create rights upon the death of a spouse.
It is imperative to have a lawyer review these agreements to properly address any rights you may have at death or as a surviving spouse. It is also important to have these documents properly reviewed by experienced probate lawyers to ensure any death time provisions are properly addressed prior to signing any of these agreements. Many of the rights of a surviving spouse can be waived or increased in properly drafted agreements. Tex. Fam. Code § 4.103.
Wills, Trusts, Probate & Litigation Attorneys Houston TX | Surviving Spouse Rights in Texas
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Survivors Rights
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