San Antonio Express-News
June 17, 2003

Will Dominates over Intestacy Laws

copyright 2003, Paul Premack

There are several ways that ownership of the assets can change hands when someone dies. Texas has a set of laws that establish who inherits an estate. These are called the laws of "descent and distribution" – and the most fundamental thing to understand about them is that they apply only as a last resort. If the spouse who died has made a legal and valid estate plan -- for instance, rights of survivorship, a trust or a Will – that plan supercedes the laws of descent and distribution.

Those estate-planning tools allow individual choice to dominate over the state’s choice. For instance, a survivorship right changes ownership by contract. If you set up a checking account jointly with your spouse, and the signed agreement at the bank recites that it is held with right of survivorship, then the account belongs to your spouse when you die. A Trust also changes ownership by agreement. During your lifetime, you assign ownership of assets to a trustee, with instructions on how to disburse them when you die.

Still another way to avoid the laws of descent and distribution, perhaps the most traditional, is to identify your heirs in your Will. After you die, the Will is probated – that is, its validity is established and the assets are distributed according to the instructions in the Will.

The point is this: the laws of descent and distribution apply only if a person fails to take advantage of all the other legal options. Thus, in your case, the Wills you and your wife have made will be honored (so long as they meet all the requirements of law); thus, according to your Will, the surviving children will not have any say so.

On the other hand, if you do not have a Will or do not take advantage of another estate planning option, then the Texas laws of descent and distribution will apply. As they existed years ago, the laws left very little to a surviving spouse. It was thought that the surviving spouse’s community property and homestead rights would be adequate. The assets belonging to the deceased spouse were, by state law, given to the children and not to the surviving spouse.

Those rules have been modernized. Under current Texas law, when a spouse dies without having made plans, the surviving spouse does inherit -- unless there are children from an earlier marriage. If so, the children are given priority over the new spouse. But I emphasize: priority is only given to the children in the absence of a Will, Trust or other legal arrangement made by the deceased spouse. When a valid and legal estate plan exists, it still takes precedence over the laws of descent and distribution.