Short answer
If a divorce is not final when someone dies in Texas, that person remains legally married. The surviving spouse normally retains the same probate and inheritance rights any surviving spouse would have: rights under intestacy, community‑property shares, and statutory protections such as homestead, exempt property, and a family allowance. A pending but unfinished divorce generally does not cut off the surviving spouse’s claims.
Detailed answer — how Texas law treats an unfinished divorce at death
1. Marital status at death
Under Texas law, a marriage remains valid until a final divorce decree is issued by a court. That means a spouse who dies before the court signs a final decree is still legally married. The legal status at the time of death controls probate and intestacy rights.
2. Intestate succession and community property basics
If the decedent did not leave a valid will, Texas intestacy law determines who inherits. Texas is a community property state: property acquired during marriage is generally community property owned equally by both spouses. On intestacy, the surviving spouse typically inherits either all or a large portion of community property and in some cases part of the decedent’s separate property depending on surviving descendants.
See the Texas Estates Code for the rules on heirs and intestate succession: Texas Estates Code, Chapter 201 (Heirs and Descendants).
3. If there is a will
A will can leave property to people other than the spouse, but some statutory protections limit how fully a surviving spouse can be disinherited. In Texas, a surviving spouse generally has rights to homestead and exempt property and a family allowance regardless of the will. Because community property is jointly owned, a will cannot transfer community property that already belongs to the surviving spouse.
See protections such as homestead and exempt property provisions in the Texas Estates Code: Texas Estates Code, Chapter 353 (Exempt Property & Family Allowance).
4. Homestead, exempt property, and family allowance
Even if the decedent attempted to disinherit a spouse, Texas law provides certain non‑waivable protections for a surviving spouse: a homestead allowance (the home and related rights), certain exempt personal property, and a family allowance for support during probate. These protections can mean the surviving spouse leaves probate with at least those statutory entitlements.
5. Practical consequences if divorce was pending
- If the divorce decree was never signed, the spouse typically inherits or retains community property rights just like any other surviving spouse.
- If the decedent and spouse had already separated and the decedent executed a new will after separation, the will governs to the extent it is valid and does not conflict with statutory spouse protections or community ownership.
- If the decedent had transferred assets in anticipation of divorce, courts may examine whether transfers were valid or made to defeat creditor or spouse rights.
6. How an executor or administrator should proceed
- Determine marital status at time of death. A pending divorce petition does not end the marriage.
- Identify community vs. separate property. Documents like bank records, property deeds, and acquisition dates help classify assets.
- Give notice to the surviving spouse; the spouse can make claims for exempt property, homestead, or other statutory rights.
- If there is a dispute, the matter can be resolved in probate court. The court interprets will validity, whether transfers were fraudulent, and how Texas community‑property rules apply.
7. Common hypothetical examples
Example A: A couple files for divorce. The husband dies before the decree is signed. He left no will. The wife, still legally his spouse, likely receives her share under intestacy and half of the community estate (with possible rights to part of separate estate depending on children).
Example B: A wife filed for divorce and the husband died before the court finalized the divorce. The husband left a will leaving everything to his brother. The surviving wife still can claim homestead, exempt property, and family allowance; community property rights remain. The will cannot give away the wife’s share of community property.
8. Timing: what if the divorce would have been final shortly after death?
The crucial fact is whether the final divorce decree was entered before death. Only a signed final decree severs the marriage. Contingent or expected events (like a later court order) do not retroactively change status at death.
9. How to challenge or defend claims
If someone believes the surviving spouse should not inherit (for example, they claim fraud or the spouse waived rights), the proper forum is probate court. Common arguments include proof of a valid antenuptial or postnuptial agreement, written waivers, or that transfers were valid and not made to defeat rights. Conversely, a surviving spouse may assert spousal rights, homestead claims, and community property ownership.
Key Texas statutes and resources
- Intestate succession and heirs — Texas Estates Code, Chapter 201: https://statutes.capitol.texas.gov/Docs/ES/htm/ES.201.htm
- Homestead, exempt property, and family allowance provisions — Texas Estates Code, Chapter 353: https://statutes.capitol.texas.gov/Docs/ES/htm/ES.353.htm
- Texas Family Code (general provisions on divorce and final decree) — Texas Family Code: https://statutes.capitol.texas.gov/Docs/FM/htm/FM.6.htm
Helpful hints
- Do not assume separation or a pending divorce ends marital rights. Only a final decree severs the marriage under Texas law.
- If you are an executor, document dates carefully: date of death, dates of filing, and whether a final divorce decree exists.
- Gather deeds, bank records, retirement account records, and any prenuptial or postnuptial agreements to classify assets as community or separate property.
- If you are a surviving spouse, ask about homestead and exempt property rights immediately — these can be claimed even if a will appears to disinherit you.
- If litigation is likely, contact a probate or family law attorney promptly. Time limits and probate deadlines can be strict.
- Keep communications documented. If transfers or estate planning occurred shortly before death, records help courts determine intent and legality.
Next steps
If you are directly involved (executor, surviving spouse, or potential heir), you should consult a Texas probate attorney who can review the facts, the will (if any), the date of any final divorce decree, and asset classification. An attorney will explain how the Estates Code applies to your case and represent you in probate court if necessary.
Disclaimer: This article explains general principles of Texas law and is for educational purposes only. It is not legal advice and does not create an attorney‑client relationship. For advice about a particular situation, consult a licensed Texas attorney.