Disclaimer: This article is for informational purposes only and does not constitute legal advice. Consult a licensed attorney in Texas for guidance on your specific situation.
Detailed Answer
Under Texas law, when someone dies without a valid will (intestate), the Texas Estates Code dictates how their estate is divided among heirs. There is no statutory provision that allows an heir to elect a life estate in lieu of receiving the share prescribed by intestate succession.
Key points:
- Intestate Succession Controls: Texas Estates Code Chapter 201 (§ 201.001 et seq.) sets out who inherits and in what proportions. Heirs receive outright ownership or undivided interests; Texas law does not authorize substituting a life estate.
- Spousal and Family Allowances: While you cannot elect a life estate, the surviving spouse may claim a homestead allowance and exempt personal property under Texas Property Code § 5.005 (Title 9, Ch. 5), and a family allowance under Estates Code § 351.001 (Ch. 351). These are allowances, not life estates.
- No Elective Share: Texas does not have an elective share statute allowing a spouse or other heir to choose a life estate instead of their full share. The estate passes by statute only.
- Creating a Life Estate: To secure a life estate in real property, the decedent must have granted it by will or deed during life. Absent that, intestate heirs receive fee simple or undivided interests.
If you wish to hold property only for life, discuss with heirs or the personal representative whether you can agree to partition the land and grant you a life estate by deed. This requires everyone’s consent and a recorded agreement.
Helpful Hints
- Review Texas Estates Code Chapter 201 for intestate shares: ES § 201.001–.353.
- Learn about homestead and exemptions in Property Code Title 9, Chapter 5: PR § 5.001–.075.
- Consider drafting a will or deed if you want to grant a life estate in advance.
- Talk with the estate’s personal representative about voluntary life estate agreements among heirs.
- Consult a probate or real estate attorney to explore partition and life-estate conveyance.