Do you or your spouse have step-children? Do you want to leave part of your estate to your step-children (for example, if your spouse predeceases you)? Then, you better have a will.
Before further discussion, it is helpful to know that persons who die without wills are said to be “intestate.” This word is used in statutes referenced below.
Unmarried Persons with Step-Children
What if you’re not married but you have step-children? What part of your estate will they get if you die without a will? Section 201.001 of the Texas Estates Code answers this question. And the answer is…
Zip. Zero. Nada!
Married Persons with Step-Children
If you’re married, we have to look to Sections 201.002 and 201.003 of the Texas Estates Code. Section 201.002 deals with a decedent’s separate property, while Section 201.003 deals with a decedent’s community property.
Community property is actually defined by what it is not. Section 3.002 of the Texas Family Code states, “Community property consists of the property, other than separate property, acquired by either spouse during marriage.” If you are not married, you do not have community property.
Separate property is defined in Section 3.001 of the Texas Family Code. A spouse’s separate property consists of:
(1) the property owned or claimed by the spouse before marriage;
(2) the property acquired by the spouse during marriage by gift, devise, or descent; and
(3) the recovery for personal injuries sustained by the spouse during marriage, except any recovery for loss of earning capacity during marriage.
There are many nuances to these general rules. For example, income earned from separate property is community property. Also, property acquired from the proceeds or disposition of separate property remains separate property. This article does not attempt to cover all the nuances relating to characterization of property as “community” or “separate.”
Looking at Sections 201.002 and 201.003 of the Texas Estates Code, we can see the same result. Step-children get a goose egg. Nothing.
Conclusion
If you or your spouse has step-children and you want to leave any part of your estate to them, you must have a proper will. If you fail to plan properly, the only thing they’ll be entitled to is disappointment.