estate planning lawyer for step children

Why Estate Planning is Important When There are Step-Children Involved

While most people know that having a Will is important so that your assets are distributed according to your wishes. It’s especially important if you have children from a prior marriage. Many people assume that when one spouse dies, the surviving spouse will inherit everything from the deceased spouse. This is not always the case and can cause serious family strife. In the State of Texas, you need a will or other forms of estate planning documents in place. Otherwise, your assets will be distributed according to the laws of intestacy. Which are set out in Section 201 of the Texas Estates Code. The resulting distribution of the decedent’s property is likely to be very different than what the deceased would have wanted or anticipated.

Distinction Between Personal and Real Property in Texas

In Texas, there is a distinction between personal property and real property. Real property consists of real estate items such as raw land, property with a residence on it, or mineral interests. Everything else, such as personal possessions, vehicles, or jewelry, would be classified as personal property. Whether the deceased’s property is characterized as either separate or community property will also affect who will inherit the property.

Classification of Property in Texas

The State of Texas classifies property owned by a spouse as either separate or community property depending on when and how it was acquired. Property that a spouse acquires prior to marriage or received by gift or inheritance is considered separate property. Everything acquired during the marriage is presumed to be community property.

Under the Texas laws of intestacy, if a married person dies but has children from a prior marriage, the surviving spouse would only be entitled to their half of the couple’s community property. The decedent’s half would be divided equally between the decedent’s children. This comes as a shock to most surviving spouses who find that they no longer own a full interest in their own homes acquired during their marriage with the decedent.

Texas does provide constitutional protection for surviving spouses in their homestead property. Step-children cannot force the surviving spouse to sell or vacate their homestead as long as they occupy it. However, if the surviving spouse decides to sell the property or no longer occupy it as their homestead, then the proceeds of the sale would be divided among the property owners.

the importance of estate planning texas

Complexities of Dealing with Separate Property

The Texas laws of intestacy when dealing with blended families become even more complicated. Without proper estate planning to set out in detail how the decedent wishes for their separate personal property to be distributed. This property will be owned one-third by the surviving spouse and two-thirds by the decedent’s children from a prior marriage.

Navigating Personal and Real Property Distribution

As you can imagine, there is a potential for fighting over who gets what and whether to sell or keep the property. The property is now owned by multiple people. The split of the decedent’s personal property can be difficult to navigate. Without opening a formal Administration of the decedent’s estate in the courts of the decedent’s county of residence, there is nobody to referee the distribution of the assets among the heirs. The situation becomes even more volatile when dealing with any separate real property that the decedent may have.

Under the Texas laws of intestacy, the decedent’s surviving spouse is entitled to a one-third life estate. The decedent’s children from a prior marriage are entitled to the rest of the interest in the separate real property. Subject to the surviving spouse’s life estate interest. Upon the death of the surviving spouse, all interest in the decedent’s separate real property will be owned by the decedent’s children from a prior marriage.

Additionally, under the Texas laws of intestacy, step-children do not inherit from a step-parent. Consequently, without a will or other estate planning instruments in place that would provide for the step-children, they would be left out of any inheritance. If a decedent wishes for their step-children to inherit any portion of the decedent’s estate. It must be specifically spelled out in a will. Or other estate planning instruments, such as a trust.

Don’t Leave Important Decisions to the State

Without a will or other estate planning document that clearly spells out your wishes, you are leaving this distribution up to the Texas laws of intestacy. Which will distribute property in ways much different than most people would want or expect. Especially if there are children from a prior marriage. In times when family is grieving the loss of a loved one, the last thing that is needed is additional confusion and stress. Or the potential for family drama! One of our skilled attorneys in the firm’s Estate Practice can help you prepare a plan that will ensure that your final wishes are granted. Specifically, your assets are distributed in the way that YOU would want! Don’t leave these important decisions up to the State of Texas.

Written by Clint Hays, Senior Attorney at KM&D Law