Do Stepchildren Inherit?

McNair Dallas Law

Intestacy in Texas

My spouse passed. I have stepchildren who want a percentage of the profits from selling our house. What are they legally entitled to with no will?

When an individual passes away without a will, the state laws of intestacy dictate who will inherit and how the estate will be divided.

Only assets that would have passed through a person’s will are impacted by intestate succession laws. This typically includes only assets owned alone in the name of the deceased.

Often, under intestate succession, who inherits depends on whether the deceased had living children, parents, or other close relatives, when he or she died.

In Nebraska, if the decedent was married and died without a will, what the decedent’s spouse will receive depends on whether the decedent had any living parents or descendants, such as children, grandchildren, or great-grandchildren. If the decedent did not, then his or her spouse inherits all of the intestate property.

Under New Jersey’s intestacy statute, when a decedent is survived by a spouse and children who are not children of the surviving spouse (stepchildren), the surviving spouse is entitled to the first 25% of the intestate estate, but not less than $50,000 nor more than $200,000– plus one-half of the remainder of the intestate estate.

However, nj.com’s recent article entitled “Who gets this house after spouse dies with no will?” explains that the laws of intestacy don’t control the distribution of assets that were jointly owned with a right of survivorship (like a house) or that have a beneficiary designation (like life insurance).

If the house was jointly owned as husband and wife in joint tenancy with the right of survivorship, the surviving spouse solely owns the entire house by operation of law, upon the death of the first spouse. The stepchildren do not have any right to the proceeds of the sale of the house.

However, if the decedent spouse owned the house only in his or her own name or the house was titled by the spouses as “tenants in common,” then the laws of intestacy would apply.

Tenancy in common is an arrangement where two or more people have ownership interests in a property.

The big difference between joint tenants and tenants in common is that joint tenants have the right of survivorship (which gives them ownership of the property when one owner dies), tenants in common do not.

With a tenancy in common, the tenants can own different percentages of the property.

Tenants in common can also gift their share of the property to anyone upon their death.

In Texas, the intestacy succession laws are found in the Texas Probate Code.  Texas is a Community Property State, meaning that any property received during your marriate is jointly owned by you and your spouse.  Inheritance and gifts acquired during your marriage do not automatically become community property, unless they have been comingled.  Intestacy rules can be as complicated, expecially with blended families.  Contact an experienced Estate Planning attorney with experience in Probate to learn what you need to do to ensure your estate passes to the individuals you choose.

Reference: nj.com (May 5, 2021) “Who gets this house after spouse dies with no will?”

Photo by Rajiv Perera on Unsplash

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