This is why a person should never die intestate

This column first appeared in the San Antonio Express News and other Hearst Newspapers on December 18, 2018. 


2018-12-18 texas oklahoma mapDear Mr. Premack: A married man and woman own a house in Texas, and raise their four children there. He dies in 1981, intestate, while in Oklahoma. There is no legal action taken when he dies. Surviving wife continues to live in the Texas house. Oklahoma law gives one half of all real property as well as all personal to wife and one half to kids, while Texas law gives all real property to the wife only. In 1997, wife (mother) deeds house to son, but son dies in 1999. In 2000, wife (mother) dies. Her estate is probated, but based on the deed house title goes to son’s wife. Now son’s wife wants to sell the house, but title company is confused by the difference between Oklahoma and Texas laws. Can son’s wife get clear title by doing probate, say in Oklahoma? – GB

That story is compelling, but in the way the “facts” are expressed it is actually presumptions which are expressed as fact. To understand the position now held by son’s wife, and what action is available to her, the story must be adjusted.

First, the fact that husband died in Oklahoma is a red herring. He was a Texas resident who happened to be in Oklahoma when he died. Oklahoma law therefor does not apply in this situation. Texas law does apply because he was a Texas resident and the house is in Texas.

Second, Texas law was different in 1981 than it is today. It changed in 1993. The law that existed in Texas in 1981 is what determined who inherited deceased husband’s intestate estate. Now, the law today in Texas is as you say (the real estate generally goes to the surviving spouse). But the law in 1981 in Texas was like you report as Oklahoma law (1/2 the real estate stays with the surviving spouse and the decedent’s half goes to the children). That is why you think the Title Company is applying Oklahoma law. They aren’t. They are applying Texas law as it existed in 1981. [If husband had died with a Will leaving house to his wife then this whole confusion would have been avoided. Never die intestate.]

Hence, when wife (mother) deeded the house to son, because husband died intestate, she was giving away something she did not entirely own. She could deed her ½ to son, but she could not deed deceased husband’s (father’s) ½ to son. That half was owned equally by the four children. That son, then, already owned ¼ of ½ (that is 1/8) of the house because of his father’s death. When mother deeded her interest to him, he got another ½ (so he now owned 5/8 interest in the house.

When wife (mother) died, the house should have not been involved in her estate or probate. She had already deeded away whatever interest she had. However, that does not mean son’s wife became owner of 100% of the house. That could not have been the true legal result of mother-in-law’s probate. Her mother-in-law could not give away the 3/8 that had belonged her the other three children since 1981 (pursuant to the Texas law that existed in 1981 but just happened to look very similar to Oklahoma law).

So, the Title Company is exactly right that son’s wife cannot sell 100% of the house. She only owns 5/8th of it. Her solution is to speak with her deceased husband’s siblings to see if they will agree to either 1) gift their shares to her so she does own it all, or 2) sell their shares in cooperation with her, so that the buyer gets clear title, they each get 1/8 of the money, and she gets 5/8 of the money, or 3) they elect not to cooperate, in which case the new Texas Uniform Partition of Heirs’ Property Act would be applied (see my column from November 9, 2018).


Paul Premack is a Certified Elder Law Attorney with offices in San Antonio and Seattle, handling Wills and Trusts, Probate, and Business Entity issues. View past legal columns or submit free questions on legal issues via www.TexasEstateandProbate.com or www.Premack.com.

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