What property do children from my husband's previous marriage take if he dies without a will?

Caring asked...

Would you please clarify the "pecking order" in regard to children getting property from previous marriages? I am 54 with two children. My husband is 66, in declining health and believes that if he gets a will, it will " jinx him." He has four children. We live in Texas.

Expert Answer

Barbara Repa, a Caring.com senior editor, is an attorney, a journalist specializing in aging issues, and the author of Your Rights in the Workplace (Nolo), now in its 10th edition.

The answer depends on who is alive when your husband dies and whether the property he owns at death is considered community property or his separate property.

There is a presumption in Texas that all property acquired during marriage is community property. If a married person dies without a will survived by a spouse and children of a former marriage, all the decedent's one-half interest in the community property passes to those children, with the surviving spouse keeping his or her one-half interest.

As for property that your husband owns separately, under Texas laws, you as a surviving spouse would receive a life estate (meaning that you may continue to use the property until your death) in one-third of that property, and rest of it would pass to his children.

If this is not the result he intends, encourage him once again to put his wishes in writing in a will or living trust.