PROBATE CODE CHAPTER II. DESCENT AND DISTRIBUTION
PROBATE CODE
CHAPTER II. DESCENT AND DISTRIBUTION
§ 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, § 2, eff. June 10, 1969;
Acts 1981, 67th Leg., p. 2537, ch. 674, § 3, eff. Sept. 1, 1981.
§ 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, § 1, eff. Aug.
30, 1971. Amended by Acts 1977, 65th Leg., p. 1918, ch. 769, § 1,
eff. Aug. 29, 1977; Acts 1979, 66th Leg., p. 1741, ch. 713, § 4,
eff. Aug. 27, 1979; Acts 1987, 70th Leg., ch. 467, § 2, eff.
Sept. 1, 1987; Acts 1991, 72nd Leg., ch. 895, § 2, eff. Sept. 1,
1991; Acts 1993, 73rd Leg., ch. 846, § 1, eff. Sept. 1, 1993;
Acts 1995, 74th Leg., ch. 1039, § 5, eff. Sept. 1, 1995.
Amended by:
Acts 2007, 80th Leg., R.S., Ch. 1170, § 3.01, eff.
September 1, 2007.
§ 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, § 1, eff. Sept. 1, 1985.
Amended by:
Acts 2007, 80th Leg., R.S., Ch. 1170, § 3.02, eff.
September 1, 2007.
§ 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, § 7, eff. Sept. 1, 2003.
§ 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.
§ 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.
§ 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, § 34, eff. Sept. 1, 1989.
Amended by:
Acts 2005, 79th Leg., Ch. 169, § 2, eff. September 1, 2005.
§ 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, § 2, eff. June 12, 1969.
Amended by:
Acts 2007, 80th Leg., R.S., Ch. 1412, § 2, eff. September
1, 2007.
§ 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, § 1, eff. May 28, 1977;
Acts 1979, 66th Leg., p. 40, ch. 24, § 25, eff. Aug. 27, 1979;
Acts 1979, 66th Leg., p. 1743, ch. 713, § 5, eff. Aug. 27, 1979 ;
Acts 1987, 70th Leg., ch. 464, § 1, eff. Sept. 1, 1987; Acts
1989, 71st Leg., ch. 375, § 35, eff. Sept. 1, 1989; Acts 1997,
75th Leg., ch. 165, § 7.54, eff. Sept. 1, 1997; Acts 1997, 75th
Leg., ch. 1302, § 4, eff. Sept. 1, 1997; Acts 2001, 77th Leg.,
ch. 821, § 2.18, eff. June 14, 2001.
§ 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, § 3, eff. Sept. 1, 1991.
§ 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, § 4, eff. Sept. 1, 1993.
§ 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, § 4, eff. Sept. 1, 1991; Acts
1993, 73rd Leg., ch. 846, § 33, eff. Sept. 1, 1993.
§ 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, § 1, eff. May 15, 1961;
Acts 1969, 61st Leg., p. 1922, ch. 641, § 3, eff. June 12, 1969;
Acts 1981, 67th Leg., p. 895, ch. 319, § 1, eff. Sept. 1, 1981;
Acts 1987, 70th Leg., ch. 678, § 2; Acts 1989, 71st Leg., ch.
655, § 1, eff. Aug. 28, 1989.
§ 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, § 1, eff. Aug. 30, 1965;
Acts 1979, 66th Leg., p. 1743, ch. 713, § 6, eff. Aug. 27, 1979;
Acts 1993, 73rd Leg., ch. 846, § 5, eff. Sept. 1, 1993.
§ 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, § 4.01, eff.
September 1, 2007.