Who Are Considered Legal Heirs in Texas?

When a loved one passes away, the last thing you want to deal with is legal confusion. But if they didn't leave a will, you're probably asking yourself: Who actually inherits? Is it me? My siblings? Does my mom get everything?

These are exactly the right questions. And you deserve clear answers.

In Texas, when someone dies without a will (what lawyers call dying "intestate"), state law steps in and decides who the legal heirs are. It doesn't matter what your loved one said at Thanksgiving dinner or wrote in a letter. Without a valid will, the Texas Estates Code determines everything.

This guide will walk you through exactly who qualifies as a legal heir in Texas, how the inheritance rules work, and what to do if you need to establish heirship for property. We'll keep it straightforward—because you have enough to deal with right now.

Note: This article provides general information about Texas inheritance law and is not legal advice. Every situation is different, and you should consult with a qualified attorney for guidance on your specific circumstances.

What Does "Legal Heir" Actually Mean in Texas?

Let's start with the basics, because the term "heir" gets thrown around loosely—and the legal definition matters.

The Texas Estates Code provides a precise definition:

"'Heir' means a person who is entitled under the statutes of descent and distribution to a part of the estate of a decedent who dies intestate. The term includes the decedent's surviving spouse."

— Texas Estates Code § 22.015

That's the key distinction. If the person left a valid will, the people who receive property are called "beneficiaries" or "devisees"—not heirs. An heir only exists when there's no will.

Here's the simplest way to think about it:

• Heir = inherits because Texas law says so (no will)
• Beneficiary = inherits because the deceased chose them (in a will, trust, or account designation)

This distinction matters because legal heirs have rights that exist whether anyone acknowledges them or not. If your father died without a will and you're his child, you're a legal heir. Period. You don't need anyone's permission or approval.

In Texas, legal heirs are the people entitled to inherit under intestate succession laws. This typically includes a surviving spouse, children, parents, siblings, and more distant relatives—in a specific order determined by state law.

One more important distinction: "heir" and "next of kin" aren't the same thing. The Estates Code defines "next of kin" separately (§ 22.026) as a broader term that includes relatives for purposes like medical decisions. Your next of kin might not be your heir, and your heir might not be your closest next of kin.

How Texas Determines Who Inherits (The Big Picture)

Texas uses a system called intestate succession to decide who gets what when there's no will. Think of it as a predetermined pecking order that the state follows automatically.

The rules depend on two key factors:

1. Who survived the deceased — spouse, children, parents, siblings, etc.
2. What type of property is involved — community property or separate property

That second factor surprises many people. Texas is a "community property" state, which means assets acquired during marriage are treated differently than assets someone owned before marriage or received as gifts or inheritance. The Texas State Law Library offers helpful resources explaining these distinctions.

Here's the general hierarchy of who inherits in Texas:

1. Surviving spouse and/or children
2. Parents
3. Siblings (and their children)
4. Grandparents
5. Aunts, uncles, and cousins
6. More distant relatives
7. The State of Texas (only if absolutely no relatives exist)

The state searches extensively through both family lines before property escheats (transfers) to Texas. Having even distant cousins means the state doesn't inherit.

When There's a Surviving Spouse: It's More Complicated Than You Think

Here's the biggest misconception in Texas inheritance law: a surviving spouse does NOT automatically inherit everything.

Many married couples assume that if one spouse dies, the other gets all the assets. In reality, what the surviving spouse inherits depends on whether there are children and whether the property is community or separate.

Community Property Rules

Community property is everything acquired during the marriage—the house you bought together, the savings accounts, retirement contributions, vehicles purchased with marital income.

The statute spells out exactly what happens:

"If a person who dies intestate leaves a surviving spouse and one or more descendants who are also descendants of the surviving spouse, the surviving spouse shall take all of the community estate."

"If a person who dies intestate leaves a surviving spouse and one or more descendants who are not also descendants of the surviving spouse, the descendant or descendants of the deceased spouse shall take the portion of the community estate attributed to the deceased spouse..."

— Texas Estates Code § 201.003

In plain English:

If all children are also children of the surviving spouse: The surviving spouse inherits all community property. This is the scenario most people imagine.

If any children are from another relationship: The surviving spouse keeps their own half of community property (which they already owned). But the deceased spouse's half passes to the children—not to the spouse.

Example: Maria and Tom were married. Tom had two children from his first marriage. When Tom dies without a will, Maria keeps her half of their community property. But Tom's half goes to his two children, not Maria. Maria and her stepchildren now co-own the house.

Separate Property Rules

Separate property includes anything owned before marriage, plus gifts and inheritances received during marriage.

Notice that phrase "life estate" for real property. It means the spouse can live in or use the property during their lifetime, but doesn't actually own it. When the spouse dies, full ownership passes to the children. This creates complications if the spouse wants to sell or refinance.

When There's No Surviving Spouse

If the deceased wasn't married (or the spouse already passed), inheritance follows a clear order under Texas Estates Code § 201.001:

First: Children and their descendants

All legally recognized children inherit equal shares. If a child has already died, that child's children (the grandchildren) inherit what their parent would have received. This continues down through great-grandchildren and beyond.

Second: Parents

If there are no children or descendants, both parents inherit equally. If only one parent is living, what happens depends on whether siblings exist.

Third: Parents and siblings split

If one parent survives along with siblings, the estate splits 50/50—half to the parent, half divided among the siblings.

Fourth: Siblings only

If neither parent survives, siblings inherit everything in equal shares.

Fifth: Extended family

If none of the above exist, the estate divides into two halves—one for the mother's side of the family, one for the father's side. Each half passes to grandparents, then aunts and uncles, then cousins, and so on.

Special Situations and Edge Cases

Real families are complicated. Here's how Texas law handles common situations that don't fit neatly into the basic rules.

Adopted Children

Good news for adoptive families: adopted children have identical inheritance rights to biological children. Under Texas Estates Code § 201.054, an adopted child inherits from and through their adoptive parents exactly as if they'd been born to them. This includes inheriting from adoptive grandparents, aunts, uncles—the whole family tree.

Texas also has an interesting quirk: adopted children may still inherit from their biological parents unless a court order specifically terminated that right. However, biological parents cannot inherit from a child they placed for adoption.

Stepchildren

This is where many blended families get an unwelcome surprise: stepchildren have zero inheritance rights in Texas unless they've been legally adopted.

It doesn't matter that you raised them from age two. It doesn't matter that they called you "Dad" for thirty years. Without legal adoption, stepchildren are not heirs under Texas law.

If you want your stepchildren to inherit from you, you need either to legally adopt them or to create a will naming them as beneficiaries.

Children Born Outside of Marriage

Children born outside of marriage automatically inherit from their mother. Inheritance from a father requires establishing paternity through one of these methods (as outlined in Texas Family Code Chapter 160):

• The parents marrying after the child's birth
• A court order establishing paternity
• A signed acknowledgment of paternity
• The father living with and holding the child out as his own during the first two years

If paternity wasn't established during the father's lifetime, it can be proven after death through a court proceeding with DNA evidence—though this requires clear and convincing proof and must be filed within four years of the father's death.

Half-Siblings

Texas treats half-siblings differently than full siblings. Under § 201.057, half-blood relatives (those who share only one parent with the deceased) inherit half as much as whole-blood relatives of the same degree.

Example: Alex dies without a spouse or children. He has one full sister (same mom and dad) and one half-brother (same mom, different dad). The full sister inherits two-thirds; the half-brother inherits one-third.

When an Heir Dies Shortly After the Deceased

Texas has a 120-hour survival rule (§ 121.052). An heir must survive the deceased by at least five days to inherit. If your aunt dies on Monday and you die on Wednesday, you're treated as having died first—your share passes to whoever would have inherited if you weren't alive.

This rule prevents complicated situations where property bounces through multiple estates in rapid succession.

Posthumous Children

A child conceived before death but born after can inherit, provided they survive at least 120 hours after birth. However, children conceived after death using frozen genetic material do not qualify as heirs under current Texas intestate succession law.

Common Misconceptions About Texas Inheritance

After helping hundreds of families navigate heirship issues, we've noticed the same misunderstandings come up again and again. Let's clear them up.

"My spouse will get everything."

Not necessarily. If you have children from another relationship, or significant separate property, your spouse may inherit far less than you'd expect.

"We don't need a will—we're married."

Marriage doesn't replace a will. Without one, you can't name guardians for minor children, ensure your spouse gets full ownership of real property (instead of just a life estate), provide for stepchildren, or control when and how children receive their inheritance.

"The oldest child gets everything" or "Sons inherit more than daughters."

Texas law treats all children equally regardless of birth order or gender. The eldest has no special rights.

"Our relationship was like parent and child—surely they can inherit."

Emotional bonds don't create legal rights. Stepchildren, godchildren, and "like family" friends have no inheritance rights without legal adoption or a will.

"The estate will just go to the closest relative."

"Closest" is defined by law, not geography or emotional connection. Your estranged brother across the country inherits before your devoted neighbor who visited daily.

How Heirship Is Legally Established

Knowing you're an heir is one thing. Proving it—so you can actually transfer property—is another. When someone dies without a will, their heirs typically need to establish their status through one of these processes:

Affidavit of Heirship

This is often the simplest and most cost-effective option, especially for real property. An affidavit of heirship is a sworn legal document that identifies the deceased person's heirs. It's signed by people with knowledge of the family history (not the heirs themselves) and reviewed by an attorney.

Once recorded in the county property records, the affidavit provides evidence of who inherited the property—which title companies need to allow the property to be sold, refinanced, or transferred.

An affidavit of heirship works well when:

• The primary asset is real estate
• The heirs agree on who should inherit
• The family history is relatively straightforward
• You want to avoid the cost and delay of probate court

Determination of Heirship (Court Proceeding)

For more complex situations or when there are disputes, a court proceeding may be necessary. A judge formally determines who the legal heirs are, which creates a binding court order.

This option is typically needed when:

• Heirs disagree about who should inherit
• Paternity must be established
• The family tree is complicated or contested
• Significant non-real-estate assets require formal administration

The State Bar of Texas can help you find an attorney if you need representation for a court proceeding.

Full Probate Administration

When the estate includes assets beyond real property (bank accounts, investments, vehicles, business interests), formal probate administration may be necessary to collect and distribute assets, pay debts, and transfer ownership.

What This Means for You

If you're reading this article, chances are someone in your life has passed away without a will, and you're trying to figure out what happens next. Here's the practical reality:

If real property is involved: The property can't be sold, refinanced, or transferred until legal heirs are established. This often requires an affidavit of heirship or court determination.

If you're the surviving spouse: You may not own as much as you think, especially if stepchildren are involved or separate property exists. Understanding your actual rights helps you plan appropriately.

If you're a child of the deceased: You likely have inheritance rights, even if you weren't close to the person or didn't expect to inherit anything. Equal treatment applies regardless of family dynamics.

If you're a stepchild: Unfortunately, Texas law doesn't recognize your relationship for inheritance purposes unless you were legally adopted. If you believe you were treated as an adopted child even without formal proceedings, there may be legal options worth exploring.

If you're unsure who all the heirs are: This is more common than you'd think, especially with large families, relatives who've lost touch, or situations involving children born outside of marriage. Proper genealogical research can identify all legal heirs and prevent problems down the road.

Taking the Next Step

Dealing with inheritance issues while grieving is hard. The legal terminology feels foreign. The stakes feel high. And the last thing you want is to make a mistake that creates bigger problems later.

If there's property involved—especially real estate—establishing who the legal heirs are is usually the critical first step. An affidavit of heirship can clear the title and allow the property to be sold or transferred, often without full probate.

The key is getting it right the first time. An improperly prepared affidavit or one that misses an heir can create title problems that are expensive and time-consuming to fix.

For more information about Texas inheritance law, visit the Texas Estates Code Chapter 201 on the Texas Legislature website or the Texas State Law Library's probate resources for self-help guides.