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Question: What are the laws of intestate succession regarding a deceased person’s property who was married at the time of death and who died without a will (or without the will being probated)?
Answer: One thing to remember for states with community property laws, a surviving spouse always retains their own community property interest, it is the deceased spouse’s separate property and the deceased spouse’s community property interest that we discuss in this blog.
Arizona: Pursuant to Arizona Revised Statutes, Section 14-2102, both separate property owned by the decedent and the one-half community property that belonged to the decedent passes to the surviving spouse so long as there are no surviving issue (children or their descendants) or ALL the issue (children or their descendants) of the decedent are also the children of the surviving spouse.
However, if the decedent had surviving issue (children or their descendants) which are not also the issue of the surviving spouse, one-half of the decedent’s separate property passes to the surviving spouse but the surviving spouse does not get any of the decedent’s community property as that community property interest held by the decedent passes to his/her issue (children or their descendants).
A probate is necessary for the heir(s) to obtain marketable title via a deed of distribution, however, an affidavit of heirship may be used in place of probate in a few certain circumstances but only as approved by state underwriting counsel.
Florida: As provided for in Title XLII, Section 732.102, The Florida Statutes, the decedent’s interest passes to the surviving spouse if all the descendants of the decedent are also descendants of the surviving spouse; however, if the descendants of the deceased are not also the descendants of the surviving spouse or the surviving spouse has a descendant who is not also the descendant of the decedent, the surviving spouse takes only one-half of the decedent’s intestate estate. If there were no surviving descendant of the decedent, the surviving spouse take the decedent’s entire intestate property.
While it is acknowledged that property may have passed by operation of law, an administration of the estate is always necessary in order to transfer title as Florida does not utilize affidavits of heirship for title insuring purposes.
New Mexico: Wills need to be probated so that a personal representative of the estate can be appointed by the Court and the personal representative can distribute the property according to the terms of the will. If a person dies intestate (without a will), an intestacy proceeding is required thru the judicial system.
Generally, if a person dies intestate with a spouse, all community property goes 100% to the surviving spouse. However, the question is then whether the property was all community owned, or partially separate property. Separate property is given to the spouse if there are no children of the decedent and if there are children then the surviving spouse gets one-fourth of the intestate estate. All property acquired before marriage or during marriage by gift, bequest or devise is presumed separate property and all property acquired during marriage that is obtained by gift, bequest or devise to both spouses is presumed community property. Of course, these are “presumptions” and can be overcome so we must be careful. Only upon approval by state underwriting counsel would another alternative (affidavit of heirship) be usable.
Texas: First issue to address is whether the property was the decedent’s separate or community property and then the Texas Estate Code provisions apply.
- a) Separate property is property acquired prior to marriage, by inheritance or thru a probated will devise, or by gift. The decedent’s surviving spouse takes a life estate in 1/3 of the real property with the children or children’s heirs taking all the remainder. If there were no children, the decedent’s interest passes to the decedent’s surviving parent(s), sibling(s) or their descendants.
https://www.statutes.legis.state.tx.us/Docs/ES/htm/ES.201.htm#201.002
- b) Community property is presumed to be all property acquired during the marriage to the surviving spouse (unless it is the deceased’s separate property defined above or very clearly the decedent’s separate property). For persons who die after September 1, 1993, the decedent’s surviving spouse inherits the decedent’s interest IF AND ONLY IF ALL the decedent’s children are also the children of the surviving spouse. If the decedent had any children that are not also the children of the surviving spouse, ALL the decedent’s children (or their children) would inherit the deceased parent’s interest.
https://www.statutes.legis.state.tx.us/Docs/ES/htm/ES.201.htm#201.003
The probating of a will is the best practice but the law does not allow for a will to be probated after 4 years of date of death. A judicial establishment of heirship is a proceeding sometimes utilized. Lastly, affidavits of heirship might be used if the decedent did not have a will or the will was not probated.
The probating of a will is the best practice but the law does not generally allow for a will to be probated after 4 years of date of death unless a Judge can be convinced that those parties wishing to probate were not in default and/or have the consent of all heirs/devisees and a specific court order allowing the late probate is obtained. A judicial establishment of heirship is a proceeding sometimes utilized; and lastly, affidavits of heirship might be used if the decedent did not have a will or the will was not probated.
As always, consultation with underwriting counsel is encouraged and welcomed.
