MY NIECE'S FATHER DIED HE WAS REMARRIED AND THERE WAS NO WILL WHAT RIGHTS DOES MY NIECE HAVE AND WHAT IS SHE ENTITLED TO

REMARRIED HAS TWO DAUGHTER BY PREVIOUS MARRIAGE NONE WITH SECOND WIFE

Mount Vernon, TX -

Attorney Answers (2)

James Brian Thomas

James Brian Thomas

Probate Attorney - Dallas, TX
Answered

I'm assuming that the decedent died in Texas. When a person dies in Texas without a Will, we apply a set of statutes of descent and distribution, and the situation is commonly referred to as "intestacy." This is the Will written for you by the government, and it's yours until you change it by writing your own Will.

Applying that Will requires at least a little education on our community property principles. Separate property is property that a person acquires before a marriage, or during a marriage by gift or inheritance. Community property is everything else.

Under your facts, the decedent was married with two children from a previous marriage. The community property shared by the decedent and his wife is split down the middle. The surviving spouse retains her one-half of this property, both real and personal. The decedent's half of the community property passes to his children in equal shares. If the decedent owned separate property, it passes in thirds -- 2/3 to his children and 1/3 to his surviving spouse, both real and personal. The catch with separate real property is that the 1/3 that passes to his surviving spouse is ultimately only a life estate. The surviving spouse has the right to live in the home, but at her death or abandonment, the property reverts back to the decedent's children. The link below is provided by the Harris County probate courts, and it often helps explain all of this division.

Our probate laws and homestead provisions can heavily favor a surviving spouse in situations like this, often making things difficult for years when the decedent's children do not have a good relationship with their step-parent. You would be well-advised to encourage your niece to locate an experienced probate attorney near her to walk her through what is likely going to happen next.

I see that you're posting from Mount Vernon, which is not all too far from my Dallas/Fort Worth practice area. If you'd like, I wouldn't mind elaborating on my answer and pointing you in the right direction. Feel free to contact me through the link below or through my profile on this site.

This answer does not constitute legal advice. I am admitted to practice law in the State of Texas only, and make... more
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David L. Carrier

David L. Carrier

Probate Attorney - Grand Rapids, MI
Answered

This is why it is so important to get proper estate planning accomplished!
Maybe the State of Texas' solution would be just fine with your dad, maybe (probably?) not; but who knows and it's too late now...
Don't let that happen to you, when visiting my colleague on your dad's case, why not get yours done too? And drag your spouse along with you!

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