Inheritance Laws in Texas

Texas does not impose a state inheritance or estate tax. Most of its laws surrounding inheritance are straightforward. However, if you die without a will, the state’s intestate succession process will assume responsibility for the distribution of your assets.

Sorting an estate or inheritance can be complex, but a financial advisor can help you create a plan for it. Speak with an advisor today.

Does Texas Have an Inheritance Tax or Estate Tax?

There are no inheritance or estate taxes in Texas. The state repealed the inheritance tax beginning on Sept. 1, 2015.

However, federal tax filing requirements can still apply after someone dies. This may include:

• Final individual federal income tax return: The decedent’s final federal income tax return is generally due by the regular filing deadline for the year following the individual’s death. Texas does not impose an individual state income tax.
• Federal estate/trust income tax return: An estate may need to file Form 1041 if it meets the federal filing requirements. The filing deadline depends on whether the estate uses a calendar or fiscal tax year. An estate that must file Form 1041 generally needs its own employer identification number (EIN). You can apply for one with the IRS online, by fax or by mail.
• Federal estate tax return: This form is due nine months after the individual’s death, though an automatic six-month extension is available if requested prior to the conclusion of the nine-month period. For a U.S. citizen or resident who dies in 2026, Form 706 is generally necessary when the gross estate plus adjusted taxable gifts and certain other amounts exceeds $15 million. ¹ An estate may also file Form 706 to elect portability of a deceased spouse’s unused exclusion even when the estate is below that threshold.

Dying With a Will in Texas

If you leave a testate will, you’ve clearly and completely laid out in writing your exact wishes for your estate. This includes the naming of an executor or personal representative for the estate, heirs to your property and legal guardians for children under 18. It can also include the creation of any testamentary trusts. These handle any bequests to a beneficiary if the decedent doesn’t want that person to receive those assets until a specified time.

A valid Texas will generally controls the distribution of probate assets covered by the will. That said, creditor claims, family protections, beneficiary designations and other laws can affect the final distribution.

Texas probate is not necessary simply because an estate exceeds a certain threshold. Instead, it generally becomes necessary to admit a will to probate when court administration is needed to carry out its terms, subject to the estate’s assets and available alternatives. The court can appoint the executor named in the will to manage the estate, including duties like protecting and distributing assets and handling debts and liabilities.

However, a $75,000 threshold does apply to Texas’ small estate affidavit procedure for certain people who die without a will. When the statutory requirements are met, heirs may use a small estate affidavit after at least 30 days since death. Among other requirements, the value of estate assets, excluding the homestead and exempt property, cannot exceed $75,000. Additionally, the estate must meet rules concerning its assets, liabilities and administration. The affidavit must still be filed with and approved by the appropriate court.

Texas generally requires a will to be offered for probate within four years of the testator’s death, though an exception may apply if the applicant was not in default for failing to file on time. An affidavit of heirship is a separate tool that can establish evidence of heirs, particularly in connection with real property. It does not simply substitute for probate or automatically transfer every asset in an estate. For vehicles, a separate affidavit of heirship is available through the Texas Department of Motor Vehicles.

Dying Without a Will in Texas

Dying without a valid will in Texas leaves the distribution of assets up to the state’s intestate succession process. Even a decedent’s valid will can be intestate if it cannot disperse all estate property (possibly because of a beneficiary’s death or other extenuating circumstance) or if other parties have successfully contested the will. Unfortunately, a court can even consider invalid the will of someone who has died under the belief that they’d left everything settled.

An intestate estate, because it has little to no pre-specified direction, goes to some combination of the deceased’s spouse, children and/or relatives. To differentiate between your belongings and whom they should go to, Texas divides them into community property and separate property.

Community Property in Texas Inheritance Law

If you’re married, property acquired during your marriage is generally presumed to be community property. However, Texas law treats certain assets as separate property. This includes property owned before marriage and property acquired during marriage by gift, devise (will) or inheritance. Certain personal injury recoveries can also be separate property.

Commingling separate and community funds can make ownership harder to prove. That said, depositing an inheritance or gift into a joint account does not automatically convert the property into community property if it is still possible to trace its separate character.

Separate Property in Texas Inheritance Law

Separate property, in contrast, belongs solely to you, and can include both personal and real property. Personal property consists of items that are not literally fixed to the ground, like cash, vehicles, investments and memorabilia. Land and anything fixed to it, such as a homestead, is real property.

Spouses in Texas Inheritance Law

Texas recognizes common-law marriages, and therefore will afford your common-law spouse inheritance rights even if there’s no marriage license attributed to your relationship. Texas calls this an informal marriage. It is generally possible to prove by a signed declaration or by evidence that the couple agreed to be married, lived together in Texas as spouses after the agreement and represented to others that they were married.

All community property will go to your surviving spouse if all of your children are also theirs. But if one or more of your children are not from your surviving spouse, the deceased spouse’s one-half interest in the community estate generally passes to the deceased spouse’s children or other descendants. The surviving spouse keeps their own one-half interest.

In this situation, Texas deals with separate property differently. The state divides separate personal property between your spouse and your children, with two-thirds afforded to all the children and the remaining one-third going to the spouse. For separate real property, the surviving spouse receives a life estate in one-third of the land. Meanwhile, the children or their descendants receive the remainder interest in that one-third and inherit the other two-thirds outright.

The laws in Texas surrounding intestate estates for married individuals without children are much simpler. The surviving spouse automatically receives all community property. Separate personal property also goes completely to the surviving spouse. Meanwhile, separate real property goes equally to the surviving spouse and the deceased’s parents, siblings or siblings’ descendants, in that order.

Children in Texas Inheritance Law

Biological children of the decedent and their spouse hold some of the strongest inheritance rights to an intestate estate’s property. Texas law also generally treats an adopted child as the child of the adoptive parent or parents for intestate inheritance purposes. This allows the adopted child and the child’s descendants to inherit from and through the adoptive family.

If you’re not married, you won’t have any community property, as that is exclusively for married couples. Therefore, Texas courts will consider all of your property separately. Intestate decedents in this situation who do have children will leave all of their separate property to their children.

Intestate Succession: Spouses and Children

Stepchildren do not receive a part of your intestate estate in Texas. Because the state doesn’t view anyone related to you solely through marriage as an automatic heir, a stepchild generally does not inherit through Texas intestacy rules. The exception here is if you’d legally adopted a stepchild or they otherwise qualified as an heir under applicable law.

Children who were adopted or born following the execution of a parent’s will, otherwise known by Texas as pretermitted children, may have inheritance rights. These may apply if they were born or adopted after the will was executed and were not mentioned, provided for in the will or otherwise provided for by the testator. The amount they receive depends on the circumstances and the provisions made for other children.

Children Born Outside Marriage and Inheritance Rights in Texas

Texas does not give a child fewer rights simply because their parents were unmarried. For inheritance through a father, however, the parent-child relationship must satisfy applicable Texas law. This may include through a presumption of parentage, a court determination, adoption or a valid acknowledgment of paternity.

Once the state has established the parent-child relationship for inheritance purposes, the child can generally inherit from and through the parent under the state’s succession rules.

Unmarried Individuals Without Children in Texas Inheritance Law

The estates of legally single intestate decedents without surviving children go through a much lengthier process of inheritance under Texas law. The succession rules generally move through parents, siblings and their descendants, then to more distant paternal and maternal relatives.

Non-Probate Texas Inheritances

There are a number of financial accounts that won’t fit neatly into your estate and that require extra work to handle. This includes life insurance policies, retirement accounts like IRAs and 401(k)s, joint accounts and other beneficiary-based accounts. Assets with valid beneficiary designations generally pass to the named beneficiary outside the will. Joint accounts may also pass outside probate when they include an effective right of survivorship.

If you want a beneficiary-designated asset payable to your estate, you generally would need to name the estate as beneficiary, subject to the rules of the particular account or policy. Keep in mind that doing so can have tax and probate consequences, especially for retirement accounts.

Other Situations in Texas Inheritance Law

There are other unique situations that may apply under Texas inheritance law. Some of the most common include:

• Former spouse in will: If the deceased’s will includes a former spouse, Texas generally reads provisions in a will made before a divorce, annulment or declaration that the marriage is void as though the former spouse, and certain relatives of the former spouse, failed to survive the testator, unless the will expressly provides otherwise. If you still want a former spouse to inherit after divorce, review and update your estate documents.
• Someone who believes they were married: Questions involving an invalid marriage and a person who believed in good faith that the marriage was valid can involve Texas marital-property and equitable doctrines. A person in this situation may have differing inheritance rights than a legally recognized surviving spouse.
• Deathbed marriage: Texas law allows certain interested people to ask a court to void a marriage after a spouse dies when the marriage began no earlier than three years before death. The relevant issue is the deceased spouse’s mental capacity to consent to and understand the marriage when it occurred, not simply whether relatives believe the marriage was motivated by inheritance. It’s generally necessary to file an application to void a qualifying marriage after death prior to the first anniversary of the decedent’s death. If the court voids the marriage under these rules, the other party is not treated as the decedent’s surviving spouse under Texas law.

Bottom Line

Texas does not impose a state inheritance or estate tax. However, if you die without a will in Texas, the state’s intestate succession process will distribute your assets accordingly. Intestate succession laws affect only assets that a will would typically cover, specifically assets that you alone own, such as real estate, investments, businesses and other types of physical possessions.

Resources for Estate Planning

• Trying to sort out your estate or inheritance? A financial advisor can help you create a plan. Finding a financial advisor doesn’t have to be hard. SmartAsset’s free tool matches you with vetted financial advisors who serve your area, and you can have a free introductory call with your advisor matches to decide which one you feel is right for you. If you’re ready to find an advisor who can help you achieve your financial goals, get started now.
• If you have a sizable estate, estate taxes on either the state or federal level could be hefty. You can maximize your loved ones’ inheritances by gifting portions of your estate in advance to heirs or even setting up a trust.
• Inheritance isn’t usually considered income, but some inherited assets can have tax implications. Before you spend or invest your inheritance, make sure you’re familiar with inheritance taxes and exemptions.

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