Dying Without A Will

A will is a very important document to have.  But it seems many people put off creating a will because their own mortality is a difficult thing to face.  If you are not going to have a will, your property is distributed in a very specific way.  If you die without a will, you have no say in who gets your stuff.  The Texas Probate Code section 38 identifies who, by law, will get your property upon your death.  Dying without a will is called dying intestate.

Your property is divided differently if you are married versus if you are unmarried.                                           
Dying Intestate with No Spouse

If a person dies unmarried, his or her property is divided in the following manner:

1. If the person has children, all property is divided equally among all children and the descendants of any deceased children.  If the person only has one child, then all property goes to that child.
    
2. If there are no living children nor descendants of and previously deceased children, then the deceased person’s property is divided equally between his or her father and mother.
    
3. If only one parent is living, then the estate is divided into two equal portions: Fifty percent goes to the surviving parent and the other half will pass to the siblings of the deceased, and to their descendants.  But if there are no siblings or descendants of the siblings, then the surviving father or mother receives the entire estate.
    
4. If there is no surviving mother or father, all property passes to the brothers and sisters of the deceased and to their descendants.
    
5. If there are no parents of the deceased, no siblings, and no descendants of the siblings, then the deceased property is divided one-half to the paternal side of the family and the other half to the maternal side of the family in the following manner: 

• To the grandfather and grandmother in equal portions but only if one of them is living; one half goes to that grandparent and the other half to the descendant or descendants of the deceased grandparent.
   
• If there are no descendants of the deceased grandparent, then the whole estate is inherited by the surviving grandparent.
   
• If there are no surviving grandfather or grandmother, the whole of such estate goes to their descendants, “and so on without end” in the same manner to the next lineal ancestors and their descendants.
  

Dying Intestate with A Spouse
If a person dies and is married at the time of death, the surviving spouse is entitled to keep all marital property (that which was acquired during the marriage) if the deceased has no children or the only children the deceased has are the children of the surviving spouse. 

If the deceased has children or descendants who are not children/descendants of the surviving spouse, then the spouse retains his or her half of the marital property and the children/descendants of the deceased receive equal shares of the deceased’s half.

For any personal property the deceased owned, it is divided differently.  Personal property is all property acquired by the deceased prior to the marriage, any inheritance the deceased received at any time, and any gifts given only to the deceased during the marriage.

Personal property is divided in the following manner:

1. If the deceased has one or more children or living descendants of those children, the surviving spouse shall take a third of the personal estate with the balance of the personal property going to the surviving children of the deceased and their descendants.  The surviving spouse is also entitled to a life estate in one-third of the land of the deceased with the remainder to the children of the deceased and their descendants.
2. If the deceased does not have any children or any descendants of their children, then the surviving spouse is entitled to all the personal estate and to half of the real property of the deceased without remainder to any other person.  The other half will pass according to the rules set out above for a person dying without a spouse.  But if the deceased has no surviving father, mother, brothers, sisters or any of their descendants, the surviving spouse will get the entirety of the estate.

One final note: For purposes of intestate division of property, a step-child is not considered a child of the deceased.

Ami J. Decker
www.famlawtex.com

Geographic Restrictions

Texas Family Code section 153.001 says it is the public policy of the State of Texas to assure children have "frequent and continuing contact" with both parents so long as each parent has proven the ability to act in the best interest of the child.

How do courts do that? They assure frequent contact with both parents with what is called geographical restrictions. A geographical restriction is an order of the court preventing the parent with primary custody moving the primary residence of the child outside of an identified geographic area. Sometimes the person with primary custody is called the custodial parent and the person with the possession schedule is the non-custodial parent. For both parents to have "frequent and continuing contact" with their child, the parents must be located in the same geographic area. If one parent is living in Lansing, Michigan and the other parent is living Fort Worth, Texas, there is no way both parents will have frequent or regular contact with his or her child. The non-custodial parent will not be able to go to the child’s soccer games or school events on a regular basis.

So what does a geographical restriction look like? In Tarrant County, Texas, a geographical restriction often says the custodial parent cannot relocate the child outside of Tarrant County and counties contiguous to Tarrant. Sometimes that restriction is limited to Tarrant County only. The parents can also agree to some variation. For example, parents might agree the parent with primary custody cannot move the child outside a specific school district or a 20-mile radius of a particular municipality.

It is common not to bind the parent with primary custody to this geographical restriction if the non-custodial parent moves out of that same area. For example, if there is a geographical restriction in place for Tarrant and contiguous counties, mom has primary custody and dad has a standard possession schedule. Mom cannot move with the child outside of this defined geographic area. However, if Dad, packs up and moves to Austin, Mom is free to move anywhere she wants with the child. The purpose of the geographic restriction in this situation is to allow Dad the opportunity to see his child frequently. If he moves to Austin, he has already forfeited that ability so Mom is free to move wherever she wants.

Is a geographical restriction automatic? Not necessarily. If a parent asks for it, that parent will most certainly get a geographical restriction in a Tarrant County court. Usually the parent who wants the restriction is the parent who does not have primary possession of the child.

So what happens if, several years after the divorce, the non-custodial parent lives in the geographically restricted area but the custodial parent wants to move somewhere outside of that area? Lifting the geographic restriction rarely, if ever, is allowed by a Court in Tarrant County if the non-custodial parent does not agree. If for some reason a Court allowed the custodial parent to move outside of the geographic area, that custodial parent usually is ordered to pay all travel expenses for the child to see the other parent.

This payment of travel expenses would also hold true if the non-custodial parent moved outside of the area and the custodial parent remained in the geographical area. Any parent who moves outside of the geographically restricted area ordered by the court will have to pay travel expenses for the child to visit so long as the other parent remains in the geographic area.

Just remember, the overarching requirement is for Courts to act in the best interest of the child at all times. It is presumed it is in the best interest of the child to have "frequent and continuing contact" with both parents. To get around a geographical restriction, you will have to prove to the Court that the other parent cannot act in the best interest of the child.

Ami J. Decker
www.famlawtex.com