Legal Question in Wills and Trusts in Texas
Separate Property and a Will
My husband and I have been married for 18 years and he has never changed his will to include me, his wife. The heirs of his estate are his two grown children. He owned farm acreage prior to our marriage. We continue to farm these acres in our ranching business. I have been told that the ''appreciated'' value of the land is community property, which I would be entitled to in the event of his death. Is this correct? Would I have to sue his estate to recover what is due to me, his spouse? We have also purchased additional ranches since our marriage. These were purchased with our joint money, but deeds are in his name only. I would really appreciate your reply. Thank you.
2 Answers from Attorneys
Re: Separate Property and a Will
You should consult a lawyer on this and have the will redone, especially as it appears there are children from a prior marriage. Appreciation in seperate property (capital gains) is not community property, but you may be entitled to an equitable reimbursement for contributing to the appreciation.
Re: Separate Property and a Will
You are correct that the appreciated values are community property, also the additional land acquired during marriage without regard to whose name is on the deed. You also retain a life estate in your homestead, and you cannot be divested of that, even if living on his separate property.
It would help if he'd update his will, but you'd be in fair shape if you had to challenge the disposition of property in probate. What does your will say?
If you're not named in the will, you'd take by intestacy; that is you'd get your 1/2 of the community assets and a 1/3 life estate in his separate property. That gives you all the benefits of rents, profits from whatever's harvested, etc.
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