Can I disinherit my spouse or child in Texas?
1. Spousal Disinheritance. Texas is a community-property state. Under Tex. Fam. Code § 3.002, property acquired during marriage is presumed community, and each spouse owns an undivided one-half interest. A decedent may devise only their one-half of community property and their separate property. Texas does not have an elective share statute.
2. Augmented Estate. Texas has not adopted the UPC augmented-estate framework. Community-property classification handles partnership-theory protection at death.
3. Election Procedure. No formal election exists. A surviving spouse simply asserts ownership of the community half. If the will purports to dispose of community property in a way inconsistent with the survivor's rights, the spouse can be put to an election under the doctrine in Dakan v. Dakan, 83 S.W.2d 620 (Tex. 1935).
4. Pretermitted Child. Under Tex. Est. Code § 255.051-.056, a child born or adopted after the will and not mentioned or provided for receives a share equal to what the child would have received under intestacy if the testator had died without a will, with limitations based on whether the testator had other children at execution.
5. Intentional Disinheritance of Child. Express disinheritance language is enforceable for adult children. Texas does not protect adult children from disinheritance.
6. Louisiana Forced Heirship. Does not apply in Texas.
7. Prenuptial / Postnuptial Waiver. Texas has adopted the Uniform Premarital Agreement Act (Tex. Fam. Code ch. 4); spouses may waive community rights with voluntary signing and fair disclosure.
8. Homestead, Family Allowance, Exempt Property. Texas homestead protection is constitutional (Tex. Const. art. XVI § 52); the surviving spouse has a life estate or occupancy right that overrides the will. Family allowance under Tex. Est. Code § 353.101 and exempt property under § 353.051 apply regardless of will terms.
9. Will Contest Grounds. Lack of capacity, undue influence, fraud, or improper execution under Tex. Est. Code § 256.204; contest must generally be filed within two years.
This is legal information, not legal advice.
- You want to draft a will that deliberately omits a spouse or adult child
- You are a surviving spouse facing a will that purports to give away community property
- You want to ensure homestead and exempt-property rights are properly asserted
- Tex. Est. Code § 255.051
- Tex. Fam. Code § 3.002
- Tex. Const. art. XVI § 52
This is legal information, not legal advice. Laws vary by jurisdiction and change frequently. Always verify current law with official sources and consult a licensed attorney in your jurisdiction for advice on your specific situation.