Houston, TX asked in Estate Planning and Probate for Texas

Q: Am I, as a surviving spouse, entitled to any part of my husbands estate, even though we were separated?

When my husband died, we’d been separated for several years. His family informed me of his death and said his will stated that everything went to his brother. Can I be totally disinherited or do I have any legal claim to part of his estate?

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2 Lawyer Answers
Terry Lynn Garrett
Terry Lynn Garrett
PREMIUM
Answered
  • Estate Planning Lawyer
  • Austin, TX
  • Licensed in Texas

A: In Texas separation has no legal effect, only divorce does.

However, unlike in the states which were party of the English colonies or in Europe, you are not automatically entitled to part of your husband's estate. You keep your 50% community property interest -- and all property acquired during the marriage is presumed to be community property. Whether the home was community or separate property, you have a right to reside in it for life. But if you do not now reside in the marital home, you have abandoned that right.

Kyle Robbins
Kyle Robbins
PREMIUM
Answered
  • Estate Planning Lawyer
  • Austin, TX
  • Licensed in Texas

A: I’m sorry to hear you are going through this, it’s a tough situation from the sound of it.

The good news is you have full legal rights as a surviving spouse, separation has no effect. You have a right to 50% of everything you and your husband own (including any real estate). You also have rights you can enforce as a surviving spouse, despite your husband naming his brother as his beneficiary:

1) Family allowance: under this you can apply for money to cover your living expenses for up to 12 months.

2) Allowance in lieu of homestead: you are entitled to up to $45,000 if you don't own a home.

3) Homestead: if you do own a home, you are entitled to live in it rent free for the rest of your life.

If you’d like to learn more about protecting your rights, give me a call and I would be happy to explain in more detail!

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