CHAPTER II. DESCENT AND DISTRIBUTION
PROBATE CODE
CHAPTER II. DESCENT AND DISTRIBUTION
Text of article effective until January 01, 2014
Sec. 37. PASSAGE OF TITLE UPON INTESTACY AND UNDER A WILL. When
a person dies, leaving a lawful will, all of his estate devised
or bequeathed by such will, and all powers of appointment granted
in such will, shall vest immediately in the devisees or legatees
of such estate and the donees of such powers; and all the estate
of such person, not devised or bequeathed, shall vest immediately
in his heirs at law; subject, however, to the payment of the
debts of the testator or intestate, except such as is exempted by
law, and subject to the payment of court-ordered child support
payments that are delinquent on the date of the person's death;
and whenever a person dies intestate, all of his estate shall
vest immediately in his heirs at law, but with the exception
aforesaid shall still be liable and subject in their hands to the
payment of the debts of the intestate and the delinquent child
support payments; but upon the issuance of letters testamentary
or of administration upon any such estate, the executor or
administrator shall have the right to possession of the estate as
it existed at the death of the testator or intestate, with the
exception aforesaid; and he shall recover possession of and hold
such estate in trust to be disposed of in accordance with the
law.
Acts 1955, 54th Leg., p. 88, ch. 55, eff. Jan. 1, 1956. Amended
by Acts 1969, 61st Leg., p. 1703, ch. 556, Sec. 2, eff. June 10,
1969; Acts 1981, 67th Leg., p. 2537, ch. 674, Sec. 3, eff. Sept.
1, 1981.
Text of article effective until January 01, 2014
Sec. 37A. MEANS OF EVIDENCING DISCLAIMER OR RENUNCIATION OF
PROPERTY OR INTEREST RECEIVABLE FROM A DECEDENT. (a) Persons
Who May Disclaim. Any person, or the guardian of an
incapacitated person, the personal representative of a deceased
person, or the guardian ad litem of an unborn or unascertained
person, with prior court approval of the court having, or which
would have, jurisdiction over such guardian, personal
representative, or guardian ad litem, or any independent executor
of a deceased person, without prior court approval, or an
attorney in fact or agent appointed under a durable power of
attorney authorizing disclaimers that is executed by a principal,
who may be entitled to receive any property as a beneficiary and
who intends to effect disclaimer irrevocably on or after
September 1, 1977, of the whole or any part of such property
shall evidence same as herein provided.
(b) Effective Date of Disclaimer. A disclaimer evidenced as
provided by this section shall be effective as of the death of
decedent and shall relate back for all purposes to the death of
the decedent and is not subject to the claims of any creditor of
the disclaimant.
(c) Effect of Disclaimer. Unless the decedent's will provides
otherwise, the property subject to the disclaimer shall pass as
if the person disclaiming or on whose behalf a disclaimer is made
had predeceased the decedent and a future interest that would
otherwise take effect in possession or enjoyment after the
termination of the estate or interest that is disclaimed takes
effect as if the disclaiming beneficiary had predeceased the
decedent.
(d) Ineffective Disclaimer. Failure to comply with the
provisions of this section shall render such disclaimer
ineffective except as an assignment of such property to those who
would have received same had the person attempting the disclaimer
died prior to the decedent.
(e) Definitions. The term "property" as used in this section
shall include all legal and equitable interests, powers, and
property, whether present or future, whether vested or
contingent, and whether beneficial or burdensome, in whole or in
part. The term "disclaimer" as used in this section shall
include "renunciation." In this section "beneficiary" includes a
person who would have been entitled, if the person had not made a
disclaimer, to receive property as a result of the death of
another person by inheritance, under a will, by an agreement
between spouses for community property with a right of
survivorship, by a joint tenancy with a right of survivorship, or
by any other survivorship agreement, account, or interest in
which the interest of the decedent passes to a surviving
beneficiary, by an insurance, annuity, endowment, employment,
deferred compensation, or other contract or arrangement, or under
a pension, profit sharing, thrift, stock bonus, life insurance,
survivor income, incentive, or other plan or program providing
retirement, welfare, or fringe benefits with respect to an
employee or a self-employed individual.
(f) Subsequent Disclaimers. Nothing in this section shall be
construed to preclude a subsequent disclaimer by any person who
shall be entitled to property as a result of a disclaimer.
(g) Form of Disclaimer. In the case of property receivable by a
beneficiary, the disclaimer shall be evidenced by a written
memorandum, acknowledged before a notary public or other person
authorized to take acknowledgements of conveyances of real
estate.
(h) Filing of Disclaimer. Unless the beneficiary is a charitable
organization or governmental agency of the state, a written
memorandum of disclaimer disclaiming a present interest shall be
filed not later than nine months after the death of the decedent
and a written memorandum of disclaimer disclaiming a future
interest may be filed not later than nine months after the event
determining that the taker of the property or interest is finally
ascertained and his interest is indefeasibly vested. If the
beneficiary is a charitable organization or a governmental agency
of the state, a written memorandum of disclaimer disclaiming a
present or future interest shall be filed not later than the
first anniversary of the date the beneficiary receives the notice
required by Section 128A of this code, or the expiration of the
six-month period following the date the personal representative
files the inventory, appraisement, and list of claims due or
owing to the estate, whichever occurs later. The written
memorandum of disclaimer shall be filed in the probate court in
which the decedent's will has been probated or in which
proceedings have been commenced for the administration of the
decedent's estate or which has before it an application for
either of the same; provided, however, if the administration of
the decedent's estate is closed, or after the expiration of one
year following the date of the issuance of letters testamentary
in an independent administration, or if there has been no will of
the decedent probated or filed for probate, or if no
administration of the decedent's estate has been commenced, or if
no application for administration of the decedent's estate has
been filed, the written memorandum of disclaimer shall be filed
with the county clerk of the county of the decedent's residence,
or, if the decedent is not a resident of this state but real
property or an interest therein located in this state is
disclaimed, a written memorandum of disclaimer shall be filed
with the county clerk of the county in which such real property
or interest therein is located, and recorded by such county clerk
in the deed records of that county.
(i) Notice of Disclaimer. Unless the beneficiary is a
charitable organization or governmental agency of the state,
copies of any written memorandum of disclaimer shall be delivered
in person to, or shall be mailed by registered or certified mail
to and received by, the legal representative of the transferor of
the interest or the holder of legal title to the property to
which the disclaimer relates not later than nine months after the
death of the decedent or, if the interest is a future interest,
not later than nine months after the date the person who will
receive the property or interest is finally ascertained and the
person's interest is indefeasibly vested. If the beneficiary is
a charitable organization or government agency of the state, the
notices required by this section shall be filed not later than
the first anniversary of the date the beneficiary receives the
notice required by Section 128A of this code, or the expiration
of the six-month period following the date the personal
representative files the inventory, appraisement, and list of
claims due or owing to the estate, whichever occurs later.
(j) Power to Provide for Disclaimer. Nothing herein shall
prevent a person from providing in a will, insurance policy,
employee benefit agreement, or other instrument for the making of
disclaimers by a beneficiary of an interest receivable under that
instrument and for the disposition of disclaimed property in a
manner different from the provisions hereof.
(k) Irrevocability of Disclaimer. Any disclaimer filed and
served under this section shall be irrevocable.
(l) Partial Disclaimer. Any person who may be entitled to
receive any property as a beneficiary may disclaim such property
in whole or in part, including but not limited to specific powers
of invasion, powers of appointment, and fee estate in favor of
life estates; and a partial disclaimer or renunciation, in
accordance with the provisions of this section, shall be
effective whether the property so renounced or disclaimed
constitutes a portion of a single, aggregate gift or constitutes
part or all of a separate, independent gift; provided, however,
that a partial disclaimer shall be effective only with respect to
property expressly described or referred to by category in such
disclaimer; and provided further, that a partial disclaimer of
property which is subject to a burdensome interest created by the
decedent's will shall not be effective unless such property
constitutes a gift which is separate and distinct from
undisclaimed gifts.
(m) Partial Disclaimer by Spouse. Without limiting Subsection
(l) of this section, a disclaimer by the decedent's surviving
spouse of a transfer by the decedent is not a disclaimer by the
surviving spouse of all or any part of any other transfer from
the decedent to or for the benefit of the surviving spouse,
regardless of whether the property or interest that would have
passed under the disclaimed transfer passes because of the
disclaimer to or for the benefit of the surviving spouse by the
other transfer.
(n) Disclaimer After Acceptance. No disclaimer shall be
effective after the acceptance of the property by the
beneficiary. For the purpose of this subsection, acceptance
shall occur only if the person making such disclaimer has
previously taken possession or exercised dominion and control of
such property in the capacity of beneficiary.
(o) Interest in Trust Property. A beneficiary who accepts an
interest in a trust is not considered to have a direct or
indirect interest in trust property that relates to a licensed or
permitted business and over which the beneficiary exercises no
control. Direct or indirect beneficial ownership of not more
than five percent of any class of equity securities that is
registered under the Securities Exchange Act of 1934 shall not be
deemed to be an ownership interest in the business of the issuer
of such securities within the meaning of any statute, pursuant
thereto.
Added by Acts 1971, 62nd Leg., p. 2954, ch. 979, Sec. 1, eff.
Aug. 30, 1971. Amended by Acts 1977, 65th Leg., p. 1918, ch. 769,
Sec. 1, eff. Aug. 29, 1977; Acts 1979, 66th Leg., p. 1741, ch.
713, Sec. 4, eff. Aug. 27, 1979; Acts 1987, 70th Leg., ch. 467,
Sec. 2, eff. Sept. 1, 1987; Acts 1991, 72nd Leg., ch. 895, Sec.
2, eff. Sept. 1, 1991; Acts 1993, 73rd Leg., ch. 846, Sec. 1,
eff. Sept. 1, 1993; Acts 1995, 74th Leg., ch. 1039, Sec. 5, eff.
Sept. 1, 1995.
Amended by:
Acts 2007, 80th Leg., R.S., Ch.
1170, Sec. 3.01, eff. September 1, 2007.
Text of article effective until January 01, 2014
Sec. 37B. ASSIGNMENT OF PROPERTY RECEIVED FROM A DECEDENT. (a) A
person entitled to receive property or an interest in property
from a decedent under a will, by inheritance, or as a beneficiary
under a life insurance contract, and who does not disclaim the
property under Section 37A of this code, may assign the property
or interest in property to any person.
(b) The assignment may, at the request of the assignor, be filed
as provided for the filing of a disclaimer under Section 37A(h)
of this code. The filing requires the service of notice under
Section 37A(i) of this code.
(c) Failure to comply with the provisions of Section 37A of this
code does not affect an assignment under this section.
(d) An assignment under this section is a gift to the assignee
and is not a disclaimer or renunciation under Section 37A of this
code.
(e) An assignment that would defeat a spendthrift provision
imposed in a trust may not be made under this section.
Added by Acts 1985, 69th Leg., ch. 880, Sec. 1, eff. Sept. 1,
1985.
Amended by:
Acts 2007, 80th Leg., R.S., Ch.
1170, Sec. 3.02, eff. September 1, 2007.
Text of article effective until January 01, 2014
Sec. 37C. SATISFACTION OF DEVISE. (a) Property given to a person
by a testator during the testator's lifetime is considered a
satisfaction, either wholly or partly, of a devise to the person
if:
(1) the testator's will provides for deduction of the lifetime
gift;
(2) the testator declares in a contemporaneous writing that the
lifetime gift is to be deducted from or is in satisfaction of the
devise; or
(3) the devisee acknowledges in writing that the lifetime gift is
in satisfaction of the devise.
(b) Property given in partial satisfaction of a devise shall be
valued as of the earlier of the date on which the devisee
acquires possession of or enjoys the property or the date on
which the testator dies.
Added by Acts 2003, 78th Leg., ch. 1060, Sec. 7, eff. Sept. 1,
2003.
Text of article effective until January 01, 2014
Sec. 38. PERSONS WHO TAKE UPON INTESTACY. (a) Intestate Leaving
No Husband or Wife. Where any person, having title to any estate,
real, personal or mixed, shall die intestate, leaving no husband
or wife, it shall descend and pass in parcenary to his kindred,
male and female, in the following course:
1. To his children and their descendants.
2. If there be no children nor their descendants, then to his
father and mother, in equal portions. But if only the father or
mother survive the intestate, then his estate shall be divided
into two equal portions, one of which shall pass to such
survivor, and the other half shall pass to the brothers and
sisters of the deceased, and to their descendants; but if there
be none such, then the whole estate shall be inherited by the
surviving father or mother.
3. If there be neither father nor mother, then the whole of such
estate shall pass to the brothers and sisters of the intestate,
and to their descendants.
4. If there be none of the kindred aforesaid, then the
inheritance shall be divided into two moieties, one of which
shall go to the paternal and the other to the maternal kindred,
in the following course: To the grandfather and grandmother in
equal portions, but if only one of these be living, then the
estate shall be divided into two equal parts, one of which shall
go to such survivor, and the other shall go to the descendant or
descendants of such deceased grandfather or grandmother. If there
be no such descendants, then the whole estate shall be inherited
by the surviving grandfather or grandmother. If there be no
surviving grandfather or grandmother, then the whole of such
estate shall go to their descendants, and so on without end,
passing in like manner to the nearest lineal ancestors and their
descendants.
(b) Intestate Leaving Husband or Wife. Where any person having
title to any estate, real, personal or mixed, other than a
community estate, shall die intestate as to such estate, and
shall leave a surviving husband or wife, such estate of such
intestate shall descend and pass as follows:
1. If the deceased have a child or children, or their
descendants, the surviving husband or wife shall take one-third
of the personal estate, and the balance of such personal estate
shall go to the child or children of the deceased and their
descendants. The surviving husband or wife shall also be entitled
to an estate for life, in one-third of the land of the intestate,
with remainder to the child or children of the intestate and
their descendants.
2. If the deceased have no child or children, or their
descendants, then the surviving husband or wife shall be entitled
to all the personal estate, and to one-half of the lands of the
intestate, without remainder to any person, and the other half
shall pass and be inherited according to the rules of descent and
distribution; provided, however, that if the deceased has neither
surviving father nor mother nor surviving brothers or sisters, or
their descendants, then the surviving husband or wife shall be
entitled to the whole of the estate of such intestate.
Acts 1955, 54th Leg., p. 88, ch. 55, eff. Jan. 1, 1956.
Text of article effective until January 01, 2014
Sec. 39. NO DISTINCTION BECAUSE OF PROPERTY'S SOURCE. There
shall be no distinction in regulating the descent and
distribution of the estate of a person dying intestate between
property which may have been derived by gift, devise or descent
from the father, and that which may have been derived by gift,
devise or descent from the mother; and all the estate to which
such intestate may have had title at the time of death shall
descend and vest in the heirs of such person in the same manner
as if he had been the original purchaser thereof.
Acts 1955, 54th Leg., p. 88, ch. 55, eff. Jan. 1, 1956.
Text of article effective until January 01, 2014
Sec. 40. INHERITANCE BY AND FROM AN ADOPTED CHILD. For purposes
of inheritance under the laws of descent and distribution, an
adopted child shall be regarded as the child of the parent or
parents by adoption, such adopted child and its descendants
inheriting from and through the parent or parents by adoption and
their kin the same as if such child were the natural child of
such parent or parents by adoption, and such parent or parents by
adoption and their kin inheriting from and through such adopted
child the same as if such child were the natural child of such
parent or parents by adoption. The natural parent or parents of
such child and their kin shall not inherit from or through said
child, but, except as provided by Section 162.507(c), Family
Code, the child shall inherit from and through its natural parent
or parents. Nothing herein shall prevent any parent by adoption
from disposing of his property by will according to law. The
presence of this Section specifically relating to the rights of
adopted children shall in no way diminish the rights of such
children, under the laws of descent and distribution or
otherwise, which they acquire by virtue of their inclusion in the
definition of "child" which is contained in this Code.
Acts 1955, 54th Leg., p. 88, ch. 55, eff. Jan. 1, 1956. Amended
by Acts 1989, 71st Leg., ch. 375, Sec. 34, eff. Sept. 1, 1989.
Amended by:
Acts 2005, 79th Leg., Ch.
169, Sec. 2, eff. September 1, 2005.
Text of article effective until January 01, 2014
Sec. 41. MATTERS AFFECTING AND NOT AFFECTING THE RIGHT TO
INHERIT. (a) Persons Not in Being. No right of inheritance shall
accrue to any persons other than to children or lineal
descendants of the intestate, unless they are in being and
capable in law to take as heirs at the time of the death of the
intestate.
(b) Heirs of Whole and Half Blood. In situations where the
inheritance passes to the collateral kindred of the intestate, if
part of such collateral be of the whole blood, and the other part
be of the half blood only, of the intestate, each of those of
half blood shall inherit only half so much as each of those of
the whole blood; but if all be of the half blood, they shall have
whole portions.
(c) Alienage. No person is disqualified to take as an heir
because he or a person through whom he claims is or has been an
alien.
(d) Convicted Persons and Suicides. No conviction shall work
corruption of blood or forfeiture of estate, except in the case
of a beneficiary in a life insurance policy or contract who is
convicted and sentenced as a principal or accomplice in wilfully
bringing about the death of the insured, in which case the
proceeds of such insurance policy or contract shall be paid as
provided in the Insurance Code of this State, as same now exists
or is hereafter amended; nor shall there be any forfeiture by
reason of death by casualty; and the estates of those who destroy
their own lives shall descend or vest as in the case of natural
death.
(e) Parent-Child Relationship. A probate court may declare that
the parent of a child under 18 years of age may not inherit from
or through the child under the laws of descent and distribution
if the court finds by clear and convincing evidence that the
parent has:
(1) voluntarily abandoned and failed to support the child in
accordance with the parent's obligation or ability for at least
three years before the date of the child's death, and did not
resume support for the child before that date;
(2) voluntarily and with knowledge of the pregnancy, abandoned
the mother of the child beginning at a time during her pregnancy
with the child and continuing through the birth, failed to
provide adequate support or medical care for the mother during
the period of abandonment before the birth of the child, and
remained apart from and failed to support the child since birth;
or
(3) been convicted or has been placed on community supervision,
including deferred adjudication community supervision, for being
criminally responsible for the death or serious injury of a child
under the following sections of the Penal Code or adjudicated
under Title 3, Family Code, for conduct that caused the death or
serious injury of a child and that would constitute a violation
of one of the following sections of the Penal Code:
(A) Section 19.02 (murder);
(B) Section 19.03 (capital murder);
(C) Section 19.04 (manslaughter);
(D) Section 21.11 (indecency with a child);
(E) Section 22.01 (assault);
(F) Section 22.011 (sexual assault);
(G) Section 22.02 (aggravated assault);
(H) Section 22.021 (aggravated sexual assault);
(I) Section 22.04 (injury to a child, elderly individual, or
disabled individual);
(J) Section 22.041 (abandoning or endangering child);
(K) Section 25.02 (prohibited sexual conduct);
(L) Section 43.25 (sexual performance by a child); or
(M) Section 43.26 (possession or promotion of child
pornography).
(f) Treatment of Certain Relationships. On a determination that
the parent of a child may not inherit from or through the child
under Subsection (e) of this section, the parent shall be treated
as if the parent predeceased the child for purposes of:
(1) inheritance under the laws of descent and distribution; and
(2) any other cause of action based on parentage.
Acts 1955, 54th Leg., p. 88, ch. 55, eff. Jan. 1, 1956. Amended
by Acts 1969, 61st Leg., p. 1922, ch. 641, Sec. 2, eff. June 12,
1969.
Amended by:
Acts 2007, 80th Leg., R.S., Ch.
1412, Sec. 2, eff. September 1, 2007.
Text of article effective until January 01, 2014
Sec. 42. INHERITANCE RIGHTS OF CHILDREN. (a) Maternal
Inheritance. For the purpose of inheritance, a child is the child
of his biological or adopted mother, so that he and his issue
shall inherit from his mother and from his maternal kindred, both
descendants, ascendants, and collaterals in all degrees, and they
may inherit from him and his issue.
(b) Paternal Inheritance. (1) For the purpose of inheritance, a
child is the child of his biological father if the child is born
under circumstances described by Section 160.201, Family Code, is
adjudicated to be the child of the father by court decree as
provided by Chapter 160, Family Code, was adopted by his father,
or if the father executed an acknowledgment of paternity as
provided by Subchapter D, Chapter 160, Family Code, or a like
statement properly executed in another jurisdiction, so that he
and his issue shall inherit from his father and from his paternal
kindred, both descendants, ascendants, and collaterals in all
degrees, and they may inherit from him and his issue. A person
claiming to be a biological child of the decedent, who is not
otherwise presumed to be a child of the decedent, or claiming
inheritance through a biological child of the decedent, who is
not otherwise presumed to be a child of the decedent, may
petition the probate court for a determination of right of
inheritance. If the court finds by clear and convincing evidence
that the purported father was the biological father of the child,
the child is treated as any other child of the decedent for the
purpose of inheritance and he and his issue may inherit from his
paternal kindred, both descendants, ascendants, and collaterals
in all degrees, and they may inherit from him and his issue. This
section does not permit inheritance by a purported father of a
child, whether recognized or not, if the purported father's
parental rights have been terminated.
(2) A person who purchases for valuable consideration any
interest in real or personal property of the heirs of a decedent,
who in good faith relies on the declarations in an affidavit of
heirship that does not include a child who at the time of the
sale or contract of sale of the property is not a presumed child
of the decedent and has not under a final court decree or
judgment been found to be entitled to treatment under this
subsection as a child of the decedent, and who is without
knowledge of the claim of that child, acquires good title to the
interest that the person would have received, as purchaser, in
the absence of any claim of the child not included in the
affidavit. This subdivision does not affect the liability, if
any, of the heirs for the proceeds of any sale described by this
subdivision to the child who was not included in the affidavit of
heirship.
(c) Homestead Rights, Exempt Property, and Family Allowances. A
child as provided by Subsections (a) and (b) of this section is a
child of his mother, and a child of his father, for the purpose
of determining homestead rights, distribution of exempt property,
and the making of family allowances.
(d) Marriages Void and Voidable. The issue of marriages declared
void or voided by annulment shall be treated in the same manner
as issue of a valid marriage.
Acts 1955, 54th Leg., p. 88, ch. 55, eff. Jan. 1, 1956. Amended
by Acts 1977, 65th Leg., p. 762, ch. 290, Sec. 1, eff. May 28,
1977; Acts 1979, 66th Leg., p. 40, ch. 24, Sec. 25, eff. Aug. 27,
1979; Acts 1979, 66th Leg., p. 1743, ch. 713, Sec. 5, eff. Aug.
27, 1979 ; Acts 1987, 70th Leg., ch. 464, Sec. 1, eff. Sept. 1,
1987; Acts 1989, 71st Leg., ch. 375, Sec. 35, eff. Sept. 1, 1989;
Acts 1997, 75th Leg., ch. 165, Sec. 7.54, eff. Sept. 1, 1997;
Acts 1997, 75th Leg., ch. 1302, Sec. 4, eff. Sept. 1, 1997; Acts
2001, 77th Leg., ch. 821, Sec. 2.18, eff. June 14, 2001.
Text of article effective until January 01, 2014
Sec. 43. DETERMINATION OF PER CAPITA AND PER STIRPES
DISTRIBUTION. When the intestate's children, descendants,
brothers, sisters, uncles, aunts, or any other relatives of the
deceased standing in the first or same degree alone come into the
distribution upon intestacy, they shall take per capita, namely:
by persons; and, when a part of them being dead and a part
living, the descendants of those dead shall have right to
distribution upon intestacy, such descendants shall inherit only
such portion of said property as the parent through whom they
inherit would be entitled to if alive.
Acts 1955, 54th Leg., p. 88, ch. 55, eff. Jan. 1, 1956. Amended
by Acts 1991, 72nd Leg., ch. 895, Sec. 3, eff. Sept. 1, 1991.
Text of article effective until January 01, 2014
Sec. 44. ADVANCEMENTS. (a) If a decedent dies intestate as to
all or a portion of the decedent's estate, property the decedent
gave during the decedent's lifetime to a person who, on the date
of the decedent's death, is the decedent's heir, or property
received by a decedent's heir under a nontestamentary transfer
under Chapter XI of this code is an advancement against the
heir's intestate share only if:
(1) the decedent declared in a contemporaneous writing or the
heir acknowledged in writing that the gift or nontestamentary
transfer is an advancement; or
(2) the decedent's contemporaneous writing or the heir's written
acknowledgment otherwise indicates that the gift or
nontestamentary transfer is to be taken into account in computing
the division and distribution of the decedent's intestate estate.
(b) For purposes of Subsection (a) of this section, property that
is advanced is valued at the time the heir came into possession
or enjoyment of the property or at the time of the decedent's
death, whichever occurs first.
(c) If the recipient of the property fails to survive the
decedent, the property is not taken into account in computing the
division and distribution of the decedent's intestate estate,
unless the decedent's contemporaneous writing provides otherwise.
Acts 1955, 54th Leg., p. 88, ch. 55, eff. Jan. 1, 1956. Amended
by Acts 1993, 73rd Leg., ch. 846, Sec. 4, eff. Sept. 1, 1993.
Text of article effective until January 01, 2014
Sec. 45. COMMUNITY ESTATE. (a) On the intestate death of one of
the spouses to a marriage, the community property estate of the
deceased spouse passes to the surviving spouse if:
(1) no child or other descendant of the deceased spouse survives
the deceased spouse; or
(2) all surviving children and descendants of the deceased spouse
are also children or descendants of the surviving spouse.
(b) On the intestate death of one of the spouses to a marriage,
if a child or other descendant of the deceased spouse survives
the deceased spouse and the child or descendant is not a child or
descendant of the surviving spouse, one-half of the community
estate is retained by the surviving spouse and the other one-half
passes to the children or descendants of the deceased spouse. The
descendants shall inherit only such portion of said property to
which they would be entitled under Section 43 of this code. In
every case, the community estate passes charged with the debts
against it.
Acts 1955, 54th Leg., p. 88, ch. 55, eff. Jan. 1, 1956. Amended
by Acts 1991, 72nd Leg., ch. 895, Sec. 4, eff. Sept. 1, 1991;
Acts 1993, 73rd Leg., ch. 846, Sec. 33, eff. Sept. 1, 1993.
Text of article effective until January 01, 2014
Sec. 46. JOINT TENANCIES. (a) If two or more persons hold an
interest in property jointly, and one joint owner dies before
severance, the interest of the decedent in the joint estate shall
not survive to the remaining joint owner or owners but shall pass
by will or intestacy from the decedent as if the decedent's
interest had been severed. The joint owners may agree in writing,
however, that the interest of any joint owner who dies shall
survive to the surviving joint owner or owners, but no such
agreement shall be inferred from the mere fact that the property
is held in joint ownership.
(b) Subsection (a) does not apply to agreements between spouses
regarding their community property. Agreements between spouses
regarding rights of survivorship in community property are
governed by Part 3 of Chapter XI of this code.
Acts 1955, 54th Leg., p. 88, ch. 55, eff. Jan. 1, 1956. Amended
by Acts 1961, 57th Leg., p. 233, ch. 120, Sec. 1, eff. May 15,
1961; Acts 1969, 61st Leg., p. 1922, ch. 641, Sec. 3, eff. June
12, 1969; Acts 1981, 67th Leg., p. 895, ch. 319, Sec. 1, eff.
Sept. 1, 1981; Acts 1987, 70th Leg., ch. 678, Sec. 2; Acts 1989,
71st Leg., ch. 655, Sec. 1, eff. Aug. 28, 1989.
Text of article effective until January 01, 2014
Sec. 47. REQUIREMENT OF SURVIVAL BY 120 HOURS. (a) Survival of
Heirs. A person who fails to survive the decedent by 120 hours is
deemed to have predeceased the decedent for purposes of homestead
allowance, exempt property, and intestate succession, and the
decedent's heirs are determined accordingly, except as otherwise
provided in this section. If the time of death of the decedent or
of the person who would otherwise be an heir, or the times of
death of both, cannot be determined, and it cannot be established
that the person who would otherwise be an heir has survived the
decedent by 120 hours, it is deemed that the person failed to
survive for the required period. This subsection does not apply
where its application would result in the escheat of an intestate
estate.
(b) Disposal of Community Property. When a husband and wife have
died, leaving community property, and neither the husband nor
wife survived the other by 120 hours, one-half of all community
property shall be distributed as if the husband had survived, and
the other one-half thereof shall be distributed as if the wife
had survived. The provisions of this subsection apply to proceeds
of life or accident insurance which are community property and
become payable to the estate of either the husband or the wife,
as well as to other kinds of community property.
(c) Survival of Devisees or Beneficiaries. A devisee who does not
survive the testator by 120 hours is treated as if he predeceased
the testator, unless the will of the decedent contains some
language dealing explicitly with simultaneous death or deaths in
a common disaster, or requiring that the devisee survive the
testator or survive the testator for a stated period in order to
take under the will. If property is so disposed of that the right
of a beneficiary to succeed to any interest therein is
conditional upon his surviving another person, the beneficiary
shall be deemed not to have survived unless he or she survives
the person by 120 hours. However, if any interest in property is
given alternatively to one of two or more beneficiaries, with the
right of each to take being dependent upon his surviving the
other or others, and all shall die within a period of less than
120 hours, the property shall be divided into as many equal
portions as there are beneficiaries, and those portions shall be
distributed respectively to those who would have taken in the
event that each beneficiary had survived.
(d) Joint Owners. If any real or personal property, including
community property with a right of survivorship, shall be so
owned that one of two joint owners is entitled to the whole on
the death of the other, and neither survives the other by 120
hours, these assets shall be distributed one-half as if one joint
owner had survived and the other one-half as if the other joint
owner had survived. If there are more than two joint owners and
all have died within a period of less than 120 hours, these
assets shall be divided into as many equal portions as there are
joint owners and these portions shall be distributed respectively
to those who would have taken in the event that each joint owner
survived.
(e) Insured and Beneficiary. When the insured and a beneficiary
in a policy of life or accident insurance have died within a
period of less than 120 hours, the insured shall be deemed to
have survived the beneficiary for the purpose of determining the
rights under the policy of the beneficiary or beneficiaries as
such. The provisions of this subsection shall not prevent the
application of subsection (b) above to the proceeds of life or
accident insurance which are community property.
(f) Instruments Providing Different Disposition. When provision
has been made in the case of wills, living trusts, deeds, or
contracts of insurance, or any other situation, for disposition
of property different from the provisions of this Section, this
Section shall not apply.
Acts 1955, 54th Leg., p. 88, ch. 55, eff. Jan. 1, 1956. Amended
by Acts 1965, 59th Leg., p. 279, ch. 119, Sec. 1, eff. Aug. 30,
1965; Acts 1979, 66th Leg., p. 1743, ch. 713, Sec. 6, eff. Aug.
27, 1979; Acts 1993, 73rd Leg., ch. 846, Sec. 5, eff. Sept. 1,
1993.
Text of article effective until January 01, 2014
Sec. 47A. MARRIAGE VOIDABLE BASED ON MENTAL INCAPACITY. (a) If
a proceeding under Chapter 6, Family Code, to declare a marriage
void based on the lack of mental capacity of one of the parties
to the marriage is pending on the date of death of one of those
parties, or if a guardianship proceeding in which a court is
requested under Chapter 6, Family Code, to declare a ward's or
proposed ward's marriage void based on the lack of mental
capacity of the ward or proposed ward is pending on the date of
death of the ward or proposed ward, the court may make the
determination and declare the marriage void after the decedent's
death. In making that determination after the decedent's death,
the court shall apply the standards for an annulment prescribed
by Section 6.108(a), Family Code.
(b) Subject to Subsection (c) of this section, if a proceeding
described by Subsection (a) of this section is not pending on the
date of a decedent's death, an interested person may file an
application with the court requesting that the court void the
marriage of the decedent if, on the date of the decedent's death,
the decedent was married, and that marriage commenced not earlier
than three years before the decedent's date of death. The notice
applicable to a proceeding for a declaratory judgment under
Chapter 37, Civil Practice and Remedies Code, applies to a
proceeding under this subsection.
(c) An application requesting that the court void a decedent's
marriage authorized by Subsection (b) of this section may not be
filed after the first anniversary of the date of the decedent's
death.
(d) Except as provided by Subsection (e) of this section, in a
proceeding brought under Subsection (b) of this section, the
court shall declare the decedent's marriage void if the court
finds that, on the date the marriage occurred, the decedent did
not have the mental capacity to:
(1) consent to the marriage; and
(2) understand the nature of the marriage ceremony, if a
ceremony occurred.
(e) In a proceeding brought under Subsection (b) of this
section, a court that makes a finding described by Subsection (d)
of this section may not declare the decedent's marriage void if
the court finds that, after the date the marriage occurred, the
decedent:
(1) gained the mental capacity to recognize the marriage
relationship; and
(2) did recognize the marriage relationship.
(f) If the court declares a decedent's marriage void in a
proceeding described by Subsection (a) of this section or brought
under Subsection (b) of this section, the other party to the
marriage is not considered the decedent's surviving spouse for
purposes of any law of this state.
Added by Acts 2007, 80th Leg., R.S., Ch.
1170, Sec. 4.01, eff. September 1, 2007.