San Antonio Express-News
March 28, 2006

Two Intestacy Issues

copyright 2006, Paul Premack

When you signed that deed giving your husband a half ownership in the home, you changed your relationship to the property. He became half owner of it, and he got the right to decide what to do with that half. Sadly, he never did make a decision for himself and died intestate.

Under state law, when a spouse dies intestate and has children from a prior marriage, that spouse’s separate property real estate passes to his children (except for a "one-third life estate" that passes to the surviving spouse). That leaves you as outright owner of the half you have always owned, as owner of a life estate in one-third of his half, and with the legal right to continue to occupy the home without interference from his children.

Your husband could have controlled the situation, overruling the laws of intestacy by making a Will for himself. In that Will, he could have left his half of the house to anyone, including you or his children. Or he could have created a right of survivorship to give title back to you. Or you could have avoided this situation by never signing the deed to give him half, or by giving him only an estate for life in half that would have reverted to you on his death (for more on that, check my column archives at www.premack.com/columns/2004/2004-07-06.htm).

There are several procedures that might be used to handle his estate. If he had a variety of other assets and had significant debts, then a dependent administration with a determination of heirship is likely. If his only asset is half the house and debts are minor, then a Small Estate Affidavit or an Affidavit of Heirship may suffice. You will need to have a face-to-face consult with an attorney to make the right choice.

Dear Mr. Premack: My mother-in-law has no will and has many assets. She is married for the second time, and her husband has two children of his own. They expect they will receive shares of her money, along with her only son (my husband). His mother has money from before this marriage and they also have money together. What does state law do with her funds should she die without a will? – M

Your mother-in-law’s separate property funds pass 2/3 to her child from her prior marriage (your husband) and 1/3 to her surviving spouse if she has no Will. The community property stays half with her husband (the part he has always owned) and her half passes to her child from the prior marriage if she has no Will.

She can change that by making a Will, imposing any pattern of giving that she desires over the assets she owns. She cannot give away any of the assets that are already owned by her husband. Her husband’s children do not inherit anything unless she wants them to, although they may inherit assets that their father previously inherited if your mother-in-law dies before him.