Does my fathers house get split 50/50 between his wife My Mother, and his 3 kids?

UPDATED: Oct 1, 2022

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Does my fathers house get split 50/50 between his wife My Mother, and his 3 kids?

My father passed away in 2017.
He was married to my mother at the time of
death, but in the process of getting divorced.
He had no will.
They were married when he got the loan for the
We live in Texas.
My question is How does the property get split

Asked on July 11, 2019 under Real Estate Law, Texas


SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 3 years ago | Contributor

"In the process of getting divorced" is irrelevant: either you are married or you are not married. If the divorce was not final yet, he was still married. Since there was no will, his estate, including the house, passes by "intestate succession"--the rules for who gets what when there is no will. Texas is a community property state as you note. To oversimplify, anything acquired or earned during marriage other than an inheritance is community property, anything owned pre-marriage is separate property, as is any inheritance. You write that they were married when "he got the loan for house": we assume that means he bought the house while married. If so, it is community property. His wife (your mother) keeps her 1/2 interest in the house (her 1/2 interest in community property). The other 1/2 interest is split or divided among his children. The wife (your mother) also, however, gets a "life estate" in the home--that is, regardless of ownership, the right to use it (live in it) for the remainder of her life. After she passes away, then the children get their rights to it. 

IMPORTANT NOTICE: The Answer(s) provided above are for general information only. The attorney providing the answer was not serving as the attorney for the person submitting the question or in any attorney-client relationship with such person. Laws may vary from state to state, and sometimes change. Tiny variations in the facts, or a fact not set forth in a question, often can change a legal outcome or an attorney's conclusion. Although has verified the attorney was admitted to practice law in at least one jurisdiction, he or she may not be authorized to practice law in the jurisdiction referred to in the question, nor is he or she necessarily experienced in the area of the law involved. Unlike the information in the Answer(s) above, upon which you should NOT rely, for personal advice you can rely upon we suggest you retain an attorney to represent you.

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