What are my rights as surviving spouse if we were separated when my husband died?

We were separated for approximately 3 years when my husband died 3 months ago. He owned his house outright, no mortgage, before we married. He had no Will bit does have 3 surviving children, none of whom are mine. Do I have any obligation to the house or any rights? Can I collect his social security benefits?

Asked on May 23, 2016 under Estate Planning, Texas


B.H.F., Member, Texas State Bar / FreeAdvice Contributing Attorney

Answered 4 years ago | Contributor

You have a couple of different issues... but for most of them, you will need to reach out to a probate attorney to assist you.  Even though you were separated, you still have rights to the estate. You have two different sets of rights.  The first right is as an owner.  If there were items in the house that were community property, then you have the default right of ownership to those items.  The probate court cannot divide or give away an item that is already yours.  Your second set of rights are as a surviving spouse.  The Texas Probate Code sets out a specific formula of who gets what when someone dies without a will.  Because you are a surviving spouse, you have the right to inherit.  His children will also have the right to inherit.  Therefore, you need to have the estate submitted to probate.   The probate will also provide you some protection from creditors because the probate court can and will set out rules for what will be paid and how of any remaining debts of your husband's estate.
As far as social security... you may or may not receive benefits.  That will depend on social security and the number of children you did have together.  Obtain a copy of the death certificate and then reach out to social security to see if they will approve distribution of his funds to you.

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