What do natural the children of a first marriage inherit after an intestate death?

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What do natural the children of a first marriage inherit after an intestate death?

At the time of his death my father owned a house with his second wife, and mineral rights inherited from his mother. He and my stepmother had no children. There was no Will. The estate was not probated. There is an affidavit of heirship on file at the county. What should my sister and I (his only children, of his first wife) inherit? This in in TX.

Asked on January 3, 2012 under Estate Planning, Texas

Answers:

Michael Duffy / Duffy Law, LLC

Answered 9 years ago | Contributor

First, I'm so sorry for your loss. Now is a difficult time to have to deal with such matters.

I'm not sure of the specifics of TX law as I practice in PA and NJ, but generally the wife would be entitled to a share of the estate. If she didn't have any children with him, and he had two children from a previous marriage, it would probably be 50%. Many states allow the surviving spouse to take a flat amount off the top (often between $30,000-$150,000) before dividing up the remaining shares. The remaining share of the estate would be divided up according to the intestate laws of your state, but if it's only you and your sister, that would probably mean you both would get an equeal share of the remaining 50%, or 25% each.

That does not include jointly help property, which is not part of the decdent's estate. If your father owned the house jointly as husband and wife with your stepmother, title to the house would pass directly through her. This would also include jointly held bank accounts, etc. Probate is not required for that. 

There are also certain options a widow may have even if she is not on the title of the property, but that does not seem to be the case here.

In short, you probably wouldn't be entitled to the house if the surviving spouse held it jointly. You might be entitled to a share of the mineral rights or any other assets in the estate, but that would depend on the amount TX allows a surviving spouse to take off the top and the value of the assets. Again, this is all general, non-state specific information and not legal advice in any way. You should contact an attorney in your area for specific advice and information as it relates to your situation.


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