CHAPTER II. DESCENT AND DISTRIBUTION - Texas Statutes

PROBATE CODE

CHAPTER II. DESCENT AND DISTRIBUTION

Text of article effective until January 01, 2014

Sec. 37. PASSAGE OF TITLE UPON INTESTACY AND UNDER A WILL. When

a person dies, leaving a lawful will, all of his estate devised

or bequeathed by such will, and all powers of appointment granted

in such will, shall vest immediately in the devisees or legatees

of such estate and the donees of such powers; and all the estate

of such person, not devised or bequeathed, shall vest immediately

in his heirs at law; subject, however, to the payment of the

debts of the testator or intestate, except such as is exempted by

law, and subject to the payment of court-ordered child support

payments that are delinquent on the date of the person's death;

and whenever a person dies intestate, all of his estate shall

vest immediately in his heirs at law, but with the exception

aforesaid shall still be liable and subject in their hands to the

payment of the debts of the intestate and the delinquent child

support payments; but upon the issuance of letters testamentary

or of administration upon any such estate, the executor or

administrator shall have the right to possession of the estate as

it existed at the death of the testator or intestate, with the

exception aforesaid; and he shall recover possession of and hold

such estate in trust to be disposed of in accordance with the

law.

Acts 1955, 54th Leg., p. 88, ch. 55, eff. Jan. 1, 1956. Amended

by Acts 1969, 61st Leg., p. 1703, ch. 556, Sec. 2, eff. June 10,

1969; Acts 1981, 67th Leg., p. 2537, ch. 674, Sec. 3, eff. Sept.

1, 1981.

Text of article effective until January 01, 2014

Sec. 37A. MEANS OF EVIDENCING DISCLAIMER OR RENUNCIATION OF

PROPERTY OR INTEREST RECEIVABLE FROM A DECEDENT. (a) Persons

Who May Disclaim. Any person, or the guardian of an

incapacitated person, the personal representative of a deceased

person, or the guardian ad litem of an unborn or unascertained

person, with prior court approval of the court having, or which

would have, jurisdiction over such guardian, personal

representative, or guardian ad litem, or any independent executor

of a deceased person, without prior court approval, or an

attorney in fact or agent appointed under a durable power of

attorney authorizing disclaimers that is executed by a principal,

who may be entitled to receive any property as a beneficiary and

who intends to effect disclaimer irrevocably on or after

September 1, 1977, of the whole or any part of such property

shall evidence same as herein provided.

(b) Effective Date of Disclaimer. A disclaimer evidenced as

provided by this section shall be effective as of the death of

decedent and shall relate back for all purposes to the death of

the decedent and is not subject to the claims of any creditor of

the disclaimant.

(c) Effect of Disclaimer. Unless the decedent's will provides

otherwise, the property subject to the disclaimer shall pass as

if the person disclaiming or on whose behalf a disclaimer is made

had predeceased the decedent and a future interest that would

otherwise take effect in possession or enjoyment after the

termination of the estate or interest that is disclaimed takes

effect as if the disclaiming beneficiary had predeceased the

decedent.

(d) Ineffective Disclaimer. Failure to comply with the

provisions of this section shall render such disclaimer

ineffective except as an assignment of such property to those who

would have received same had the person attempting the disclaimer

died prior to the decedent.

(e) Definitions. The term "property" as used in this section

shall include all legal and equitable interests, powers, and

property, whether present or future, whether vested or

contingent, and whether beneficial or burdensome, in whole or in

part. The term "disclaimer" as used in this section shall

include "renunciation." In this section "beneficiary" includes a

person who would have been entitled, if the person had not made a

disclaimer, to receive property as a result of the death of

another person by inheritance, under a will, by an agreement

between spouses for community property with a right of

survivorship, by a joint tenancy with a right of survivorship, or

by any other survivorship agreement, account, or interest in

which the interest of the decedent passes to a surviving

beneficiary, by an insurance, annuity, endowment, employment,

deferred compensation, or other contract or arrangement, or under

a pension, profit sharing, thrift, stock bonus, life insurance,

survivor income, incentive, or other plan or program providing

retirement, welfare, or fringe benefits with respect to an

employee or a self-employed individual.

(f) Subsequent Disclaimers. Nothing in this section shall be

construed to preclude a subsequent disclaimer by any person who

shall be entitled to property as a result of a disclaimer.

(g) Form of Disclaimer. In the case of property receivable by a

beneficiary, the disclaimer shall be evidenced by a written

memorandum, acknowledged before a notary public or other person

authorized to take acknowledgements of conveyances of real

estate.

(h) Filing of Disclaimer. Unless the beneficiary is a charitable

organization or governmental agency of the state, a written

memorandum of disclaimer disclaiming a present interest shall be

filed not later than nine months after the death of the decedent

and a written memorandum of disclaimer disclaiming a future

interest may be filed not later than nine months after the event

determining that the taker of the property or interest is finally

ascertained and his interest is indefeasibly vested. If the

beneficiary is a charitable organization or a governmental agency

of the state, a written memorandum of disclaimer disclaiming a

present or future interest shall be filed not later than the

first anniversary of the date the beneficiary receives the notice

required by Section 128A of this code, or the expiration of the

six-month period following the date the personal representative

files the inventory, appraisement, and list of claims due or

owing to the estate, whichever occurs later. The written

memorandum of disclaimer shall be filed in the probate court in

which the decedent's will has been probated or in which

proceedings have been commenced for the administration of the

decedent's estate or which has before it an application for

either of the same; provided, however, if the administration of

the decedent's estate is closed, or after the expiration of one

year following the date of the issuance of letters testamentary

in an independent administration, or if there has been no will of

the decedent probated or filed for probate, or if no

administration of the decedent's estate has been commenced, or if

no application for administration of the decedent's estate has

been filed, the written memorandum of disclaimer shall be filed

with the county clerk of the county of the decedent's residence,

or, if the decedent is not a resident of this state but real

property or an interest therein located in this state is

disclaimed, a written memorandum of disclaimer shall be filed

with the county clerk of the county in which such real property

or interest therein is located, and recorded by such county clerk

in the deed records of that county.

(i) Notice of Disclaimer. Unless the beneficiary is a

charitable organization or governmental agency of the state,

copies of any written memorandum of disclaimer shall be delivered

in person to, or shall be mailed by registered or certified mail

to and received by, the legal representative of the transferor of

the interest or the holder of legal title to the property to

which the disclaimer relates not later than nine months after the

death of the decedent or, if the interest is a future interest,

not later than nine months after the date the person who will

receive the property or interest is finally ascertained and the

person's interest is indefeasibly vested. If the beneficiary is

a charitable organization or government agency of the state, the

notices required by this section shall be filed not later than

the first anniversary of the date the beneficiary receives the

notice required by Section 128A of this code, or the expiration

of the six-month period following the date the personal

representative files the inventory, appraisement, and list of

claims due or owing to the estate, whichever occurs later.

(j) Power to Provide for Disclaimer. Nothing herein shall

prevent a person from providing in a will, insurance policy,

employee benefit agreement, or other instrument for the making of

disclaimers by a beneficiary of an interest receivable under that

instrument and for the disposition of disclaimed property in a

manner different from the provisions hereof.

(k) Irrevocability of Disclaimer. Any disclaimer filed and

served under this section shall be irrevocable.

(l) Partial Disclaimer. Any person who may be entitled to

receive any property as a beneficiary may disclaim such property

in whole or in part, including but not limited to specific powers

of invasion, powers of appointment, and fee estate in favor of

life estates; and a partial disclaimer or renunciation, in

accordance with the provisions of this section, shall be

effective whether the property so renounced or disclaimed

constitutes a portion of a single, aggregate gift or constitutes

part or all of a separate, independent gift; provided, however,

that a partial disclaimer shall be effective only with respect to

property expressly described or referred to by category in such

disclaimer; and provided further, that a partial disclaimer of

property which is subject to a burdensome interest created by the

decedent's will shall not be effective unless such property

constitutes a gift which is separate and distinct from

undisclaimed gifts.

(m) Partial Disclaimer by Spouse. Without limiting Subsection

(l) of this section, a disclaimer by the decedent's surviving

spouse of a transfer by the decedent is not a disclaimer by the

surviving spouse of all or any part of any other transfer from

the decedent to or for the benefit of the surviving spouse,

regardless of whether the property or interest that would have

passed under the disclaimed transfer passes because of the

disclaimer to or for the benefit of the surviving spouse by the

other transfer.

(n) Disclaimer After Acceptance. No disclaimer shall be

effective after the acceptance of the property by the

beneficiary. For the purpose of this subsection, acceptance

shall occur only if the person making such disclaimer has

previously taken possession or exercised dominion and control of

such property in the capacity of beneficiary.

(o) Interest in Trust Property. A beneficiary who accepts an

interest in a trust is not considered to have a direct or

indirect interest in trust property that relates to a licensed or

permitted business and over which the beneficiary exercises no

control. Direct or indirect beneficial ownership of not more

than five percent of any class of equity securities that is

registered under the Securities Exchange Act of 1934 shall not be

deemed to be an ownership interest in the business of the issuer

of such securities within the meaning of any statute, pursuant

thereto.

Added by Acts 1971, 62nd Leg., p. 2954, ch. 979, Sec. 1, eff.

Aug. 30, 1971. Amended by Acts 1977, 65th Leg., p. 1918, ch. 769,

Sec. 1, eff. Aug. 29, 1977; Acts 1979, 66th Leg., p. 1741, ch.

713, Sec. 4, eff. Aug. 27, 1979; Acts 1987, 70th Leg., ch. 467,

Sec. 2, eff. Sept. 1, 1987; Acts 1991, 72nd Leg., ch. 895, Sec.

2, eff. Sept. 1, 1991; Acts 1993, 73rd Leg., ch. 846, Sec. 1,

eff. Sept. 1, 1993; Acts 1995, 74th Leg., ch. 1039, Sec. 5, eff.

Sept. 1, 1995.

Amended by:

Acts 2007, 80th Leg., R.S., Ch.

1170, Sec. 3.01, eff. September 1, 2007.

Text of article effective until January 01, 2014

Sec. 37B. ASSIGNMENT OF PROPERTY RECEIVED FROM A DECEDENT. (a) A

person entitled to receive property or an interest in property

from a decedent under a will, by inheritance, or as a beneficiary

under a life insurance contract, and who does not disclaim the

property under Section 37A of this code, may assign the property

or interest in property to any person.

(b) The assignment may, at the request of the assignor, be filed

as provided for the filing of a disclaimer under Section 37A(h)

of this code. The filing requires the service of notice under

Section 37A(i) of this code.

(c) Failure to comply with the provisions of Section 37A of this

code does not affect an assignment under this section.

(d) An assignment under this section is a gift to the assignee

and is not a disclaimer or renunciation under Section 37A of this

code.

(e) An assignment that would defeat a spendthrift provision

imposed in a trust may not be made under this section.

Added by Acts 1985, 69th Leg., ch. 880, Sec. 1, eff. Sept. 1,

1985.

Amended by:

Acts 2007, 80th Leg., R.S., Ch.

1170, Sec. 3.02, eff. September 1, 2007.

Text of article effective until January 01, 2014

Sec. 37C. SATISFACTION OF DEVISE. (a) Property given to a person

by a testator during the testator's lifetime is considered a

satisfaction, either wholly or partly, of a devise to the person

if:

(1) the testator's will provides for deduction of the lifetime

gift;

(2) the testator declares in a contemporaneous writing that the

lifetime gift is to be deducted from or is in satisfaction of the

devise; or

(3) the devisee acknowledges in writing that the lifetime gift is

in satisfaction of the devise.

(b) Property given in partial satisfaction of a devise shall be

valued as of the earlier of the date on which the devisee

acquires possession of or enjoys the property or the date on

which the testator dies.

Added by Acts 2003, 78th Leg., ch. 1060, Sec. 7, eff. Sept. 1,

2003.

Text of article effective until January 01, 2014

Sec. 38. PERSONS WHO TAKE UPON INTESTACY. (a) Intestate Leaving

No Husband or Wife. Where any person, having title to any estate,

real, personal or mixed, shall die intestate, leaving no husband

or wife, it shall descend and pass in parcenary to his kindred,

male and female, in the following course:

1. To his children and their descendants.

2. If there be no children nor their descendants, then to his

father and mother, in equal portions. But if only the father or

mother survive the intestate, then his estate shall be divided

into two equal portions, one of which shall pass to such

survivor, and the other half shall pass to the brothers and

sisters of the deceased, and to their descendants; but if there

be none such, then the whole estate shall be inherited by the

surviving father or mother.

3. If there be neither father nor mother, then the whole of such

estate shall pass to the brothers and sisters of the intestate,

and to their descendants.

4. If there be none of the kindred aforesaid, then the

inheritance shall be divided into two moieties, one of which

shall go to the paternal and the other to the maternal kindred,

in the following course: To the grandfather and grandmother in

equal portions, but if only one of these be living, then the

estate shall be divided into two equal parts, one of which shall

go to such survivor, and the other shall go to the descendant or

descendants of such deceased grandfather or grandmother. If there

be no such descendants, then the whole estate shall be inherited

by the surviving grandfather or grandmother. If there be no

surviving grandfather or grandmother, then the whole of such

estate shall go to their descendants, and so on without end,

passing in like manner to the nearest lineal ancestors and their

descendants.

(b) Intestate Leaving Husband or Wife. Where any person having

title to any estate, real, personal or mixed, other than a

community estate, shall die intestate as to such estate, and

shall leave a surviving husband or wife, such estate of such

intestate shall descend and pass as follows:

1. If the deceased have a child or children, or their

descendants, the surviving husband or wife shall take one-third

of the personal estate, and the balance of such personal estate

shall go to the child or children of the deceased and their

descendants. The surviving husband or wife shall also be entitled

to an estate for life, in one-third of the land of the intestate,

with remainder to the child or children of the intestate and

their descendants.

2. If the deceased have no child or children, or their

descendants, then the surviving husband or wife shall be entitled

to all the personal estate, and to one-half of the lands of the

intestate, without remainder to any person, and the other half

shall pass and be inherited according to the rules of descent and

distribution; provided, however, that if the deceased has neither

surviving father nor mother nor surviving brothers or sisters, or

their descendants, then the surviving husband or wife shall be

entitled to the whole of the estate of such intestate.

Acts 1955, 54th Leg., p. 88, ch. 55, eff. Jan. 1, 1956.

Text of article effective until January 01, 2014

Sec. 39. NO DISTINCTION BECAUSE OF PROPERTY'S SOURCE. There

shall be no distinction in regulating the descent and

distribution of the estate of a person dying intestate between

property which may have been derived by gift, devise or descent

from the father, and that which may have been derived by gift,

devise or descent from the mother; and all the estate to which

such intestate may have had title at the time of death shall

descend and vest in the heirs of such person in the same manner

as if he had been the original purchaser thereof.

Acts 1955, 54th Leg., p. 88, ch. 55, eff. Jan. 1, 1956.

Text of article effective until January 01, 2014

Sec. 40. INHERITANCE BY AND FROM AN ADOPTED CHILD. For purposes

of inheritance under the laws of descent and distribution, an

adopted child shall be regarded as the child of the parent or

parents by adoption, such adopted child and its descendants

inheriting from and through the parent or parents by adoption and

their kin the same as if such child were the natural child of

such parent or parents by adoption, and such parent or parents by

adoption and their kin inheriting from and through such adopted

child the same as if such child were the natural child of such

parent or parents by adoption. The natural parent or parents of

such child and their kin shall not inherit from or through said

child, but, except as provided by Section 162.507(c), Family

Code, the child shall inherit from and through its natural parent

or parents. Nothing herein shall prevent any parent by adoption

from disposing of his property by will according to law. The

presence of this Section specifically relating to the rights of

adopted children shall in no way diminish the rights of such

children, under the laws of descent and distribution or

otherwise, which they acquire by virtue of their inclusion in the

definition of "child" which is contained in this Code.

Acts 1955, 54th Leg., p. 88, ch. 55, eff. Jan. 1, 1956. Amended

by Acts 1989, 71st Leg., ch. 375, Sec. 34, eff. Sept. 1, 1989.

Amended by:

Acts 2005, 79th Leg., Ch.

169, Sec. 2, eff. September 1, 2005.

Text of article effective until January 01, 2014

Sec. 41. MATTERS AFFECTING AND NOT AFFECTING THE RIGHT TO

INHERIT. (a) Persons Not in Being. No right of inheritance shall

accrue to any persons other than to children or lineal

descendants of the intestate, unless they are in being and

capable in law to take as heirs at the time of the death of the

intestate.

(b) Heirs of Whole and Half Blood. In situations where the

inheritance passes to the collateral kindred of the intestate, if

part of such collateral be of the whole blood, and the other part

be of the half blood only, of the intestate, each of those of

half blood shall inherit only half so much as each of those of

the whole blood; but if all be of the half blood, they shall have

whole portions.

(c) Alienage. No person is disqualified to take as an heir

because he or a person through whom he claims is or has been an

alien.

(d) Convicted Persons and Suicides. No conviction shall work

corruption of blood or forfeiture of estate, except in the case

of a beneficiary in a life insurance policy or contract who is

convicted and sentenced as a principal or accomplice in wilfully

bringing about the death of the insured, in which case the

proceeds of such insurance policy or contract shall be paid as

provided in the Insurance Code of this State, as same now exists

or is hereafter amended; nor shall there be any forfeiture by

reason of death by casualty; and the estates of those who destroy

their own lives shall descend or vest as in the case of natural

death.

(e) Parent-Child Relationship. A probate court may declare that

the parent of a child under 18 years of age may not inherit from

or through the child under the laws of descent and distribution

if the court finds by clear and convincing evidence that the

parent has:

(1) voluntarily abandoned and failed to support the child in

accordance with the parent's obligation or ability for at least

three years before the date of the child's death, and did not

resume support for the child before that date;

(2) voluntarily and with knowledge of the pregnancy, abandoned

the mother of the child beginning at a time during her pregnancy

with the child and continuing through the birth, failed to

provide adequate support or medical care for the mother during

the period of abandonment before the birth of the child, and

remained apart from and failed to support the child since birth;

or

(3) been convicted or has been placed on community supervision,

including deferred adjudication community supervision, for being

criminally responsible for the death or serious injury of a child

under the following sections of the Penal Code or adjudicated

under Title 3, Family Code, for conduct that caused the death or

serious injury of a child and that would constitute a violation

of one of the following sections of the Penal Code:

(A) Section 19.02 (murder);

(B) Section 19.03 (capital murder);

(C) Section 19.04 (manslaughter);

(D) Section 21.11 (indecency with a child);

(E) Section 22.01 (assault);

(F) Section 22.011 (sexual assault);

(G) Section 22.02 (aggravated assault);

(H) Section 22.021 (aggravated sexual assault);

(I) Section 22.04 (injury to a child, elderly individual, or

disabled individual);

(J) Section 22.041 (abandoning or endangering child);

(K) Section 25.02 (prohibited sexual conduct);

(L) Section 43.25 (sexual performance by a child); or

(M) Section 43.26 (possession or promotion of child

pornography).

(f) Treatment of Certain Relationships. On a determination that

the parent of a child may not inherit from or through the child

under Subsection (e) of this section, the parent shall be treated

as if the parent predeceased the child for purposes of:

(1) inheritance under the laws of descent and distribution; and

(2) any other cause of action based on parentage.

Acts 1955, 54th Leg., p. 88, ch. 55, eff. Jan. 1, 1956. Amended

by Acts 1969, 61st Leg., p. 1922, ch. 641, Sec. 2, eff. June 12,

1969.

Amended by:

Acts 2007, 80th Leg., R.S., Ch.

1412, Sec. 2, eff. September 1, 2007.

Text of article effective until January 01, 2014

Sec. 42. INHERITANCE RIGHTS OF CHILDREN. (a) Maternal

Inheritance. For the purpose of inheritance, a child is the child

of his biological or adopted mother, so that he and his issue

shall inherit from his mother and from his maternal kindred, both

descendants, ascendants, and collaterals in all degrees, and they

may inherit from him and his issue.

(b) Paternal Inheritance. (1) For the purpose of inheritance, a

child is the child of his biological father if the child is born

under circumstances described by Section 160.201, Family Code, is

adjudicated to be the child of the father by court decree as

provided by Chapter 160, Family Code, was adopted by his father,

or if the father executed an acknowledgment of paternity as

provided by Subchapter D, Chapter 160, Family Code, or a like

statement properly executed in another jurisdiction, so that he

and his issue shall inherit from his father and from his paternal

kindred, both descendants, ascendants, and collaterals in all

degrees, and they may inherit from him and his issue. A person

claiming to be a biological child of the decedent, who is not

otherwise presumed to be a child of the decedent, or claiming

inheritance through a biological child of the decedent, who is

not otherwise presumed to be a child of the decedent, may

petition the probate court for a determination of right of

inheritance. If the court finds by clear and convincing evidence

that the purported father was the biological father of the child,

the child is treated as any other child of the decedent for the

purpose of inheritance and he and his issue may inherit from his

paternal kindred, both descendants, ascendants, and collaterals

in all degrees, and they may inherit from him and his issue. This

section does not permit inheritance by a purported father of a

child, whether recognized or not, if the purported father's

parental rights have been terminated.

(2) A person who purchases for valuable consideration any

interest in real or personal property of the heirs of a decedent,

who in good faith relies on the declarations in an affidavit of

heirship that does not include a child who at the time of the

sale or contract of sale of the property is not a presumed child

of the decedent and has not under a final court decree or

judgment been found to be entitled to treatment under this

subsection as a child of the decedent, and who is without

knowledge of the claim of that child, acquires good title to the

interest that the person would have received, as purchaser, in

the absence of any claim of the child not included in the

affidavit. This subdivision does not affect the liability, if

any, of the heirs for the proceeds of any sale described by this

subdivision to the child who was not included in the affidavit of

heirship.

(c) Homestead Rights, Exempt Property, and Family Allowances. A

child as provided by Subsections (a) and (b) of this section is a

child of his mother, and a child of his father, for the purpose

of determining homestead rights, distribution of exempt property,

and the making of family allowances.

(d) Marriages Void and Voidable. The issue of marriages declared

void or voided by annulment shall be treated in the same manner

as issue of a valid marriage.

Acts 1955, 54th Leg., p. 88, ch. 55, eff. Jan. 1, 1956. Amended

by Acts 1977, 65th Leg., p. 762, ch. 290, Sec. 1, eff. May 28,

1977; Acts 1979, 66th Leg., p. 40, ch. 24, Sec. 25, eff. Aug. 27,

1979; Acts 1979, 66th Leg., p. 1743, ch. 713, Sec. 5, eff. Aug.

27, 1979 ; Acts 1987, 70th Leg., ch. 464, Sec. 1, eff. Sept. 1,

1987; Acts 1989, 71st Leg., ch. 375, Sec. 35, eff. Sept. 1, 1989;

Acts 1997, 75th Leg., ch. 165, Sec. 7.54, eff. Sept. 1, 1997;

Acts 1997, 75th Leg., ch. 1302, Sec. 4, eff. Sept. 1, 1997; Acts

2001, 77th Leg., ch. 821, Sec. 2.18, eff. June 14, 2001.

Text of article effective until January 01, 2014

Sec. 43. DETERMINATION OF PER CAPITA AND PER STIRPES

DISTRIBUTION. When the intestate's children, descendants,

brothers, sisters, uncles, aunts, or any other relatives of the

deceased standing in the first or same degree alone come into the

distribution upon intestacy, they shall take per capita, namely:

by persons; and, when a part of them being dead and a part

living, the descendants of those dead shall have right to

distribution upon intestacy, such descendants shall inherit only

such portion of said property as the parent through whom they

inherit would be entitled to if alive.

Acts 1955, 54th Leg., p. 88, ch. 55, eff. Jan. 1, 1956. Amended

by Acts 1991, 72nd Leg., ch. 895, Sec. 3, eff. Sept. 1, 1991.

Text of article effective until January 01, 2014

Sec. 44. ADVANCEMENTS. (a) If a decedent dies intestate as to

all or a portion of the decedent's estate, property the decedent

gave during the decedent's lifetime to a person who, on the date

of the decedent's death, is the decedent's heir, or property

received by a decedent's heir under a nontestamentary transfer

under Chapter XI of this code is an advancement against the

heir's intestate share only if:

(1) the decedent declared in a contemporaneous writing or the

heir acknowledged in writing that the gift or nontestamentary

transfer is an advancement; or

(2) the decedent's contemporaneous writing or the heir's written

acknowledgment otherwise indicates that the gift or

nontestamentary transfer is to be taken into account in computing

the division and distribution of the decedent's intestate estate.

(b) For purposes of Subsection (a) of this section, property that

is advanced is valued at the time the heir came into possession

or enjoyment of the property or at the time of the decedent's

death, whichever occurs first.

(c) If the recipient of the property fails to survive the

decedent, the property is not taken into account in computing the

division and distribution of the decedent's intestate estate,

unless the decedent's contemporaneous writing provides otherwise.

Acts 1955, 54th Leg., p. 88, ch. 55, eff. Jan. 1, 1956. Amended

by Acts 1993, 73rd Leg., ch. 846, Sec. 4, eff. Sept. 1, 1993.

Text of article effective until January 01, 2014

Sec. 45. COMMUNITY ESTATE. (a) On the intestate death of one of

the spouses to a marriage, the community property estate of the

deceased spouse passes to the surviving spouse if:

(1) no child or other descendant of the deceased spouse survives

the deceased spouse; or

(2) all surviving children and descendants of the deceased spouse

are also children or descendants of the surviving spouse.

(b) On the intestate death of one of the spouses to a marriage,

if a child or other descendant of the deceased spouse survives

the deceased spouse and the child or descendant is not a child or

descendant of the surviving spouse, one-half of the community

estate is retained by the surviving spouse and the other one-half

passes to the children or descendants of the deceased spouse. The

descendants shall inherit only such portion of said property to

which they would be entitled under Section 43 of this code. In

every case, the community estate passes charged with the debts

against it.

Acts 1955, 54th Leg., p. 88, ch. 55, eff. Jan. 1, 1956. Amended

by Acts 1991, 72nd Leg., ch. 895, Sec. 4, eff. Sept. 1, 1991;

Acts 1993, 73rd Leg., ch. 846, Sec. 33, eff. Sept. 1, 1993.

Text of article effective until January 01, 2014

Sec. 46. JOINT TENANCIES. (a) If two or more persons hold an

interest in property jointly, and one joint owner dies before

severance, the interest of the decedent in the joint estate shall

not survive to the remaining joint owner or owners but shall pass

by will or intestacy from the decedent as if the decedent's

interest had been severed. The joint owners may agree in writing,

however, that the interest of any joint owner who dies shall

survive to the surviving joint owner or owners, but no such

agreement shall be inferred from the mere fact that the property

is held in joint ownership.

(b) Subsection (a) does not apply to agreements between spouses

regarding their community property. Agreements between spouses

regarding rights of survivorship in community property are

governed by Part 3 of Chapter XI of this code.

Acts 1955, 54th Leg., p. 88, ch. 55, eff. Jan. 1, 1956. Amended

by Acts 1961, 57th Leg., p. 233, ch. 120, Sec. 1, eff. May 15,

1961; Acts 1969, 61st Leg., p. 1922, ch. 641, Sec. 3, eff. June

12, 1969; Acts 1981, 67th Leg., p. 895, ch. 319, Sec. 1, eff.

Sept. 1, 1981; Acts 1987, 70th Leg., ch. 678, Sec. 2; Acts 1989,

71st Leg., ch. 655, Sec. 1, eff. Aug. 28, 1989.

Text of article effective until January 01, 2014

Sec. 47. REQUIREMENT OF SURVIVAL BY 120 HOURS. (a) Survival of

Heirs. A person who fails to survive the decedent by 120 hours is

deemed to have predeceased the decedent for purposes of homestead

allowance, exempt property, and intestate succession, and the

decedent's heirs are determined accordingly, except as otherwise

provided in this section. If the time of death of the decedent or

of the person who would otherwise be an heir, or the times of

death of both, cannot be determined, and it cannot be established

that the person who would otherwise be an heir has survived the

decedent by 120 hours, it is deemed that the person failed to

survive for the required period. This subsection does not apply

where its application would result in the escheat of an intestate

estate.

(b) Disposal of Community Property. When a husband and wife have

died, leaving community property, and neither the husband nor

wife survived the other by 120 hours, one-half of all community

property shall be distributed as if the husband had survived, and

the other one-half thereof shall be distributed as if the wife

had survived. The provisions of this subsection apply to proceeds

of life or accident insurance which are community property and

become payable to the estate of either the husband or the wife,

as well as to other kinds of community property.

(c) Survival of Devisees or Beneficiaries. A devisee who does not

survive the testator by 120 hours is treated as if he predeceased

the testator, unless the will of the decedent contains some

language dealing explicitly with simultaneous death or deaths in

a common disaster, or requiring that the devisee survive the

testator or survive the testator for a stated period in order to

take under the will. If property is so disposed of that the right

of a beneficiary to succeed to any interest therein is

conditional upon his surviving another person, the beneficiary

shall be deemed not to have survived unless he or she survives

the person by 120 hours. However, if any interest in property is

given alternatively to one of two or more beneficiaries, with the

right of each to take being dependent upon his surviving the

other or others, and all shall die within a period of less than

120 hours, the property shall be divided into as many equal

portions as there are beneficiaries, and those portions shall be

distributed respectively to those who would have taken in the

event that each beneficiary had survived.

(d) Joint Owners. If any real or personal property, including

community property with a right of survivorship, shall be so

owned that one of two joint owners is entitled to the whole on

the death of the other, and neither survives the other by 120

hours, these assets shall be distributed one-half as if one joint

owner had survived and the other one-half as if the other joint

owner had survived. If there are more than two joint owners and

all have died within a period of less than 120 hours, these

assets shall be divided into as many equal portions as there are

joint owners and these portions shall be distributed respectively

to those who would have taken in the event that each joint owner

survived.

(e) Insured and Beneficiary. When the insured and a beneficiary

in a policy of life or accident insurance have died within a

period of less than 120 hours, the insured shall be deemed to

have survived the beneficiary for the purpose of determining the

rights under the policy of the beneficiary or beneficiaries as

such. The provisions of this subsection shall not prevent the

application of subsection (b) above to the proceeds of life or

accident insurance which are community property.

(f) Instruments Providing Different Disposition. When provision

has been made in the case of wills, living trusts, deeds, or

contracts of insurance, or any other situation, for disposition

of property different from the provisions of this Section, this

Section shall not apply.

Acts 1955, 54th Leg., p. 88, ch. 55, eff. Jan. 1, 1956. Amended

by Acts 1965, 59th Leg., p. 279, ch. 119, Sec. 1, eff. Aug. 30,

1965; Acts 1979, 66th Leg., p. 1743, ch. 713, Sec. 6, eff. Aug.

27, 1979; Acts 1993, 73rd Leg., ch. 846, Sec. 5, eff. Sept. 1,

1993.

Text of article effective until January 01, 2014

Sec. 47A. MARRIAGE VOIDABLE BASED ON MENTAL INCAPACITY. (a) If

a proceeding under Chapter 6, Family Code, to declare a marriage

void based on the lack of mental capacity of one of the parties

to the marriage is pending on the date of death of one of those

parties, or if a guardianship proceeding in which a court is

requested under Chapter 6, Family Code, to declare a ward's or

proposed ward's marriage void based on the lack of mental

capacity of the ward or proposed ward is pending on the date of

death of the ward or proposed ward, the court may make the

determination and declare the marriage void after the decedent's

death. In making that determination after the decedent's death,

the court shall apply the standards for an annulment prescribed

by Section 6.108(a), Family Code.

(b) Subject to Subsection (c) of this section, if a proceeding

described by Subsection (a) of this section is not pending on the

date of a decedent's death, an interested person may file an

application with the court requesting that the court void the

marriage of the decedent if, on the date of the decedent's death,

the decedent was married, and that marriage commenced not earlier

than three years before the decedent's date of death. The notice

applicable to a proceeding for a declaratory judgment under

Chapter 37, Civil Practice and Remedies Code, applies to a

proceeding under this subsection.

(c) An application requesting that the court void a decedent's

marriage authorized by Subsection (b) of this section may not be

filed after the first anniversary of the date of the decedent's

death.

(d) Except as provided by Subsection (e) of this section, in a

proceeding brought under Subsection (b) of this section, the

court shall declare the decedent's marriage void if the court

finds that, on the date the marriage occurred, the decedent did

not have the mental capacity to:

(1) consent to the marriage; and

(2) understand the nature of the marriage ceremony, if a

ceremony occurred.

(e) In a proceeding brought under Subsection (b) of this

section, a court that makes a finding described by Subsection (d)

of this section may not declare the decedent's marriage void if

the court finds that, after the date the marriage occurred, the

decedent:

(1) gained the mental capacity to recognize the marriage

relationship; and

(2) did recognize the marriage relationship.

(f) If the court declares a decedent's marriage void in a

proceeding described by Subsection (a) of this section or brought

under Subsection (b) of this section, the other party to the

marriage is not considered the decedent's surviving spouse for

purposes of any law of this state.

Added by Acts 2007, 80th Leg., R.S., Ch.

1170, Sec. 4.01, eff. September 1, 2007.