Death Estate

That depends on the laws of the state in which the deceased person lived. If there's a will, then the will would govern who gets what. If there isn't a will, then the state's laws of "intestate succession" apply.

If it's a community property state and all of the property was acquired during marriage (and not by inheritance), then everything would legally belong to the surviving spouse. But if real estate is involved, the surviving spouse would probably need to get a probate court to confirm his/her ownership of the property (to clear title for a title company).

Different states have different rules, so you need to consult a lawyer in the state where the deceased spouse resided to get an accurate answer to your question.

The information you obtain at this site is not, nor is it intended to be, legal advice. You should consult an attorney for individual advice regarding your own situation.

In Texas, if one spouse dies without a will and also has children, then the property will generally pass this way:

All property owned by the couple is probably community property (anything obtained during the marriage, with a few exceptions). This means one half of everything the couple owns belongs to the surviving spouse. The other half, which belonged to the deceased spouse, would pass according to the intestacy laws, and would go one half to the surviving spouse and 1/2 divided among the children.

There are nuances to the distribution, including a possible right of the spouse to remain in the homestead during his/her life even if the children are entitled to part of it. Because of these details, it's necessary to inventory both the property and the heirs (living children, and children of deceased children) and review the law. If there is enough in the estate that the children intend to take their portion, it may be a good idea to work with an attorney.