What the Brady Bunch Didn’t Teach You: Intestacy Laws in Texas for Blended Families

What the Brady Bunch Didn’t Teach You: Intestacy Laws in Texas for Blended Families

by: Lisa Sharp

        When my friend Jennifer’s* husband fell gravely ill, it was a total shock.  Mark was only in 40’s; he was athletic and healthy with a real zest for life.  This was why no one saw it coming when a genetic heart defect stopped Mark in his tracks.  He was lying in a hospital bed waiting for a heart transplant when Jen called me.  She was looking for answers.  The doctors had given her an idea about what could happen to Mark, but she also wanted to know what would happen to her and their three children if Mark didn’t recover.

          Here’s the story of Mark and Jen: they met in college at a sorority date dash.  It was love at first sight.  They dated all four years of college and got married shortly after graduation.  Jen worked as a dental hygienist to support them while Mark got his masters degree in engineering.  Mark got a high paying job and Jen was able to stay at home and take care of their growing family.  They have a beautiful home in the Park Cities and a house on Lake Travis where they throw the biggest and best Fourth of July party every year.  Jen always said it was her own fairy tale come true. 

          The sobering fact is that more than half of Americans do not have wills and Mark was among these numbers.  He and Jen never thought it was important.  What they didn’t know was that they were considered a blended family, and in Texas this makes all the difference in how an estate is divided if a person dies intestate (without a will).  Mark’s high school girlfriend had his son when Mark was seventeen.  The child was adopted by a family and Mark was not in contact with this child.  Even though Mark’s son had been adopted, under Texas law the child still had the right to inherit from Mark. 

          What would happen if Mark passed away before he got his new heart? 

          Since Mark had a child from a previous relationship, Jen would only be entitled to keep her half of their community property, the property the couple had worked hard to gain during their marriage, and Mark’s half would pass to his children equally, including his son who had been adopted.  Jen would get to use their home in the Park Cities as long as she wanted, but if she ever wanted to sell the home she would only get half the equity of the home and the other half would be distributed amongst the children.  Also, Jen would only get one third of Mark’s separate property, while the couple’s three children and Mark’s son would share the other two thirds of Mark’s separate property.

         

          To put it in more tangible terms:

          Jen would get half of their bank accounts and property, including the house on Lake Travis, which the couple had acquired since the day they said “I do”.  Jen would get the use of the home in the Park Cities as long as she lived or until she decided to sell.  Perhaps the house was too large and Jen could not afford the mortgage on her salary.  If she sold the house and paid off the mortgage she might have $200k in equity but she would only get to keep $100k.  The rest goes to Mark’s children in equal shares.  Now Jen has 100k to buy a new house for her and the three kids.  Selling the house that was too large and costly would mean that Jen and the kids would have to move into a much smaller house.  She wouldn’t be able to afford the lifestyle that she and Mark had worked so hard to give their kids, and would have to move to the suburbs, forcing the kids to uproot their lives even further.

         

          As for the house on Lake Travis, if Jen wanted to keep it she would have to buy out Mark’s share or sell it and get half of the proceeds.  This would probably mean no more 4^th of July parties.

          What about that nest egg that Jen and Mark were saving up for retirement?  She would only get half of that.  So much for retiring in Boca, she’d be lucky to retire ever.  She’d been out of the workforce for a long time and although she would be able to provide for her family on a dental hygienists salary, things would be tight.

          In the end Mark’s son that had been adopted would get 1/8^th of everything that Jen and Mark had worked hard to acquire over the years. 

          Mark would not have wanted this.

         

          Here is a simple formula for those with blended families:

If a man dies intestate and is a part of a blended family, his spouse gets ½ of the community estate.  She is allowed to live in the house until she dies (a life estate) but if she sells the house she only gets to keep half the proceeds.  She is entitled to 1/3 of any separate personal property and a life estate in 1/3 of any separate real property.

          So how does Mark and Jen’s story continue?

                  

          After my conversation with Jen, Mark called me in to the hospital to help him execute a will that left everything to Jen if something were to happen to him.  He put aside a little for his son that had been adopted, he didn’t want to leave him out in the cold, but he was able to leave money on his terms.

          This story has a happy ending.  Mark got his new heart and made a full recovery.  He’s already started planning the 4^th of July bash.  He says it’s going to be bigger than ever.

          The sad truth is that not all stories end this way.  Many people die intestate and are uninformed about the laws of intestacy.  In today’s society where a large number of families are considered “blended”, death without a will could likely lead to a person’s estate being divided in a way he would have never wanted.  The old joke is that “I won’t care because I’ll be dead!”  Do you think your family will care?

 *Names have been changed to protect the intestate.