Ignorance is not bliss when it comes to estate planning. A wife often believes that if her husband were to die before she did and he had no will, Texas law would ensure that everything would go to her and then upon her death, to her children. But that is not necessarily true.

What happens if your husband does not have a will? The answer depends upon two factors: 1) whether all of his children are also your children, and 2) the type of property he owns: community property or separate property. Community property is basically everything you acquired together in marriage, but does not include property acquired by gift or inheritance or property owned by one spouse prior to marriage.

If you have a blended family or your husband has children that are not yours too, then all of your husband’s community property is split between his children. None of it goes to you. You, of course, retain your own community property half of the total marital estate, but you receive none of your husband’s community property estate. If all of your husband’s children are also your children, then you do receive all his community property. However, regardless of whether the children are all yours too or not, the separate property of your husband does not all pass to you upon his death. Separate personal property is split: one-third to you and two-thirds to his children. With separate real property, you retain a life estate in one-third and the remainder goes to his children.

Even if you have no children, the intuitive “everything goes to the spouse” is still not true. You do not get all his real estate. His real property is divided one-half to you and one-half to his heirs at law, but you do retain a life estate in the home. Only if there are no other heirs at law does his entire estate pass to you.

Do not let the State of Texas write your will for you. The problems created by a lack of a will are easily remedied by having one. By proper planning, you can ensure your marital estate is still there to provide for you and your family’s needs when you need it most.