Surviving Spouse Rights in Texas

January 19th, 2022


What Are Surviving Spouse Rights Under Texas Law?

In order to preserve surviving spouse rights in Texas, a surviving spouse must adhere to certain time deadlines provided by statute. The failure to meet one of the probate deadlines can cause a surviving spouse to lose one or more spousal entitlements.

What if a Spouse Dies Without a Will In Texas?

When an individual dies without a will, intestate succession law will govern. Under Texas law, a statutory framework determines how a decedent’s estate will be distributed. This is referred to as Intestate Administration. If a spouse dies without a Will, the surviving spouse receives an intestate share determined by Texas law.

The amount of separate property real estate, personal property, and community property inherited by the surviving spouse depends on if children, parents, and siblings survive the decedent.

Does a Surviving Spouse Have to Make An Election? 

Texas is a community property state. There is NO right of election. A surviving spouse owns one-half of the community interest without restrictions. See Tex. Fam. Code. 3.002. In the event the decedent attempted to dispose of more than his or her share of the community property by a will, the surviving spouse must then decide whether to take under the will as provided, or take his or her own property and forego the bequest.

Surviving Spouse Homestead Rights

Article XVI, sec. 51 of the Texas Constitution sets forth who can receive homestead property upon the death of an owner if he or she is survived by a spouse or a minor child. A surviving spouse is entitled to no less than a life estate in any property used as a homestead by the deceased spouse in Texas. See Tex. Const. art XVI, sec. 52.

Surviving Spouse Rights In Exempt Property

The surviving spouse may claim exempt personal property described in section 42.002(a), Property Code.

Allowance In Lieu Of Exempt Property

The Texas Estates Code, section 353.053, also provides for an allowance in lieu of exempt property, stating:

(a) If all or any of the specific articles of exempt property described by Section 353.051(a) are not among the decedent’s effects, the court shall make, in lieu of the articles not among the effects, a reasonable allowance to be paid to the decedent’s surviving spouse and children as provided by Section 353.054.

(b) The allowance in lieu of a homestead may not exceed $45,000, and the allowance in lieu of other exempt property may not exceed $30,000, excluding the family allowance for the support of the surviving spouse, minor children, and adult incapacitated children provided by Subchapter C.

Family Allowance


A surviving spouse is also entitled to family allowance for one year payable from decedent’s estate. Texas Estates Code section 353.102.


Marital Agreements

Marital agreements which are often referred to as prenuptial agreements, ante-nuptial agreements, and post-nuptial agreements, can waive or create rights upon the death of a spouse.

It is imperative to have one of our lawyers review these agreements to properly address any rights you may have at death or as a surviving spouse. It is also important to have these documents properly reviewed by experienced probate lawyers to ensure any death time provisions are properly addressed prior to signing any of these agreements. Many of the rights of a surviving spouse can be waived or increased in properly drafted agreements. Tex. Fam. Code § 4.103.

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