A Post on Inheritance Under Texas Law: Rights of the Surviving Spouse


When a person dies, what are the rights of the surviving spouse? In this blog post, we review some of the elements that are available to a surviving spouse under Texas law. Inheritance issues can be complex, so remember that the best course of action is to reach out to one of our Dallas-based attorneys if you have any concerns concerning an inheritance issue.


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When a person dies, what are the rights of a surviving spouse?

1) Setting Aside the Homestead and Exempt Property:

Certain people can apply to the court to set aside the homestead or certain exempt property. Some of the persons (hereafter, the “Applicant”) with these rights are:

– the surviving spouse of the decedent;
– any person authorized to act on behalf of the decedent’s minor children;
– any of the decedent’s unmarried adult children remaining with the decedent’s family, any other adult child of the decedent who is incapacitated, or a person who is authorized to act on behalf of the adult incapacitated child

The Applicant would need to file a properly verified application and present sufficient proof to the Court. If there is no homestead or exempt property in the estate, the court can provide an allowance of up to $45,000.00 in lieu of the homestead or up to $30,000.00 in lieu of exempt property. This application can be filed prior to or after the filing of the Inventory.

2) Family Allowance –

When a person dies, certain persons may be entitled to a family allowance. The family allowance is usually an amount sufficient to provide for the surviving spouse, minor child or adult incapacitated children for a one-year period, commencing on the date of decedent’s death.

The applicant for the family allowance may be the surviving spouse, the minor child, the adult incapacitated children, or any person authorized to act on behalf of the decedent’s minor children or adult incapacitated children. If these family members make a proper application with the Court, the Court may approve the family allowance prior to the approval of the Inventory. The applicant would need to show that he/she lacks sufficient separate property for that time period. Accordingly, the applicant would need to review the following assets: salary accrued from date of death; life insurance proceeds; and IRA/retirement accounts.

It is prudent to file an application for a family allowance as soon as possible after approval of the Inventory. If there is a delay, a creditor of the estate may then argue that the family allowance is not necessary.

At the end of the administration, the personal representative of the estate does not need to repay the family allowance.


Under Texas law, the surviving spouse has many rights. In this blog post, we reviewed some of those rights in an inheritance situation, such as the ability to set aside the homestead and exempt property as well as the family allowance. By working with a knowledgeable attorney, the surviving spouse can exercise certain rights that are available to them under Texas law. If you or a loved one is facing a possible dispute over inheritance, reach out to our Dallas-based team of attorneys. Burdette & Rice is a recognized law firm focusing on probate, trust, and estate disputes under Texas law.

Photo credit: denisbin via Foter.com / CC BY-ND