SI DAL01110.515 Ownership in Fee Simple or Less Than Fee Simple

See SI 00830.550

A. Background

This supplement provides a general description of Dallas Region State laws applicable to ownership of real property acquired through intestate succession (i.e., the deceased had no will).

B. Policy Principles Common to States in the Dallas Region.

The following policy principles are common to most States in the Dallas Region

  1. An undivided ownership interest in intestate property (sometimes called “heir property”) generally may be sold without the consent of the other heirs. However, in Texas the heirs (other than the surviving spouse) may not sell the deceased individual's homestead as long as the surviving spouse chooses to live on the homestead.

  2. Grandchildren in Louisiana inherit by representation in all cases. That is, they inherit the portion of the estate which their parents would have inherited had their parents lived. However, in Arkansas, New Mexico, Oklahoma, and Texas, the grandchildren only inherit their parent's portion if the deceased has other surviving children. If there are no surviving children, the grandchildren inherit an equal share of the estate no matter what their parents would have inherited had the parents survived.

  3. An owner of a life estate, dower interest, or usufruct (Louisiana only) may use the property on which he or she holds the interest. In the case of a life estate or dower interest, the property interest terminates upon the death of the original holder of the life estate/dower interest, even if the interest has been sold to another. However, unless the deceased was specifically granted a usufruct for life, a usufruct terminates upon the remarriage of the surviving spouse. Life estates, dower interest, and usufructs may be sold without the consent of the remainderman (SI 01140.110A.7). As a practical matter, a usufruct which is subject to termination upon remarriage would typically have little market value. (See SI 01140.120 to determine the value of a life estate in non-home real property.)

  4. Three States in the Dallas Region have community property statutes – Texas, New Mexico and Louisiana. Real property acquired during a marriage, with community funds, is community property. However, property inherited by either member of the couple, even if the inheritance occurred during the marriage, is not community property, and is referred to as separate property. In New Mexico and Louisiana, real property which is community property is indivisible except by sale of the entirety by both members of the couple. In other words, a single member of the couple cannot independently sell his or her one-half interest in the community property to another party. Similarly, the sale of community property in Texas requires the consent of both spouses.

    NOTE: In Texas, the homestead of the couple may never be sold without the consent of both spouses with one exception. Effective April 17, 1997, if the homestead is the separate property of a spouse or community property and the other spouse has been judicially declared incapacitated, the competent spouse may sell the homestead without the consent of the incapacitated spouse. Further, spouses may at any time partition or exchange between themselves any part of their community property, and property so transferred becomes separate property. Effective January 1, 2000 spouses may at any time agree that all or part of the separate property owned by either or both spouses is converted to community property.

  5. In Texas, New Mexico, and Louisiana, personal property and liquid resources can also be community property. There is no requirement that both names of the couple be shown on titles to personal property such as car titles or financial documents. In New Mexico, the individual whose name is shown on the title or document has the authority to dispose of the property without the consent of the other member of the couple. This is also true in Louisiana with the exception of furnishings in the family home, the assets of a community enterprise, and community immovables which cannot be sold without the consent of both spouses. Additionally, concurrence of both spouses is required not only for disposition but for harvesting of timber which is on community property. In Texas, the right to sell community personal property is not controlled by whose name is on a document evidencing ownership. As with real property, whether one spouse has the authority to sell community personal property without the consent of the other spouse depends on the source of the property.

C. Intestate Succession Laws

1. Arkansas

Arkansas is not a community property State. However, community property may have been accumulated if the deceased and spouse lived in a community property State. In that case, the deceased's ½ of the community estate accumulated in a community property State generally passes under the Arkansas laws of intestate succession. However, the surviving spouse retains her ½ of the community property and does not inherit any dower interest.

Property acquired in Arkansas during marriage may be owned singly by either member of the couple, or jointly if both members sign the deed.

Singly owned property may be willed to anyone. However, if there is no will, use the following chart to determine ownership.

Arkansas

If the property was…the spouse inherits…the children or their descendants inherit…

the single-owned property of the deceased and there are surviving descendants…

only a dower interest in 1/3 of the property and…

all of the property, but subject to the dower interest.

the singly-owned property of the deceased and there are no surviving descendants…

all of the property, unless married less than 3 years…

N/A

owned by both the deceased and his/her spouse…

all the property, and …

nothing.

NOTE: If there is no surviving spouse and the deceased died without a will, the children of the deceased or their children, in the case of a predeceased child, inherit all of the deceased's property.

If the deceased and the surviving spouse had been married less than 3 years and there were no surviving descendants, the surviving spouse generally inherits only ½ of the deceased's estate. The remaining ½ of the estate passes in the following order: (1) to surviving parents, (2) to siblings or their descendants, (3) to surviving grandparents, aunts, and uncles or descendants of deceased aunts or uncles, and, finally (4) to surviving great grandparents, great aunts and great uncles, or descendants of deceased great aunts and uncles. If none of these above listed relatives survive the deceased, a surviving spouse, married less that three years would inherit all of the deceased's estate.

2. Louisiana

Louisiana is a forced heirship and a community property State. The decedent cannot in a will completely disinherit children younger than 23 or certain of his children that are mentally or physically disabled. These forced heirs may elect to receive a statutorily set portion of the property that they would have inherited had the deceased died without a will rather than inherit under the will.

If the deceased died without a will, use the following chart to determine ownership.

Louisiana

If the property was…the spouse inherits…the children or their descendants inherit…

the separate property of the deceased…

none, unless the deceased was not survived by the descendants of heirs listed below, and…

all the property.

community property and there are surviving descendants…

a usufruct in the deceased ½ of the property while retaining ownership of ½ of the community property and…

the deceased's ½ of the community property, subject to the surviving spouse's usufruct.

community property and no surviving descendants….

all the property of the deceased…

N/A

NOTE: If there are no surviving descendants, inheritance of the deceased's separate property is in the following order: (1) to siblings or descendants of deceased siblings, subject to a usufruct (life estate) of either parent who may be living, or (2) to parents, if no siblings or siblings descendants survive.

3. New Mexico

New Mexico is a community property State. Property acquired by an inheritance of one member of the couple is separate property and not community property. Anyone can dispose of his separate property with a will.

If there is no will, use the following chart to determine ownership.

New Mexico

If the property was…the spouse inherits…the children or their descendants inherit…

the separate property of the deceased and there are surviving descendants…

of the property…

of the property, unencumbered by a life estate.

the separate property of the deceased and there are no surviving descendants...

all of the property…

N/A

community property…

all of the property…

nothing.

NOTE: If there is no surviving spouse and the deceased died without a will, the descendants of the deceased inherit all of the deceased's property. If there are no descendants and there is no surviving spouse, the deceased property passes to his or her parents, and if none, to the grandparents.

4. Oklahoma

Oklahoma is not a community property State. Property may be owned singly by either member of the couple, or jointly by both members if both sign the deed. However, Oklahoma law distinguishes between property which was acquired by “joint industry” (i.e., essentially, property that was acquired during the marriage, similar to community property) of the husband and wife during the marriage, and that which was not.

Oklahoma law prohibits an individual from bequeathing certain property away from the surviving spouse. An individual who dies after July 1, 1985 may not bequeath away from the surviving spouse more than one-half of the value of property which the couple acquired by their joint industry during marriage.

Oklahoma on or after July 1, 1985

If the property was…the spouse inherits…the children or their descendants inherit…

acquired outside of marriage and there are surviving descendants…

½ of the deceased's property if all children are of the surviving spouse, or an equal share with each child if deceased survived by descendants who were not descendants of the surviving spouse and…

the remainder.

acquired outside of marriage and there are no surviving descendants…

1/3 of the property…

(See Note Below)

N/A

acquired during the marriage by “joint industry” of the spouses, and there are surviving descendants…

the deceased spouse's ownership in the property …

N/A

acquired during the marriage by “joint industry” of the spouses, and there are no surviving descendants…

all of the property…

N/A

owned by both the deceased and the spouse (tenancy by the entirety)

all of the property…

nothing.

NOTE: If the property was acquired outside of marriage and there are no surviving descendants, the property not inherited by the surviving spouse is inherited by the deceased's parents, if any, then by descendants of the parents by right of representation. If no parent or sibling of the deceased survives, the surviving spouse inherits all of the property.

If there is no surviving spouse, the deceased's surviving children or their descendants inherit all of the decedent's property.

5. Texas

Texas is a community property State. Anyone can dispose of his property as he wishes with a will. However, if there is no will, refer to the following chart.

Texas (Before September 1, 1993)

If the property was…the spouse inherits…the children or their descendants inherit…

the separate property of the deceased and there are surviving descendants

1/3 life estate in the real property and…

the remainder of the real property, but subject to the life estate

the separate property of the deceased and there are no surviving descendants

½ of the deceased's real property

(See Note Below)

N/A

community property and there are surviving descendants…

none of the deceased's community property, but retains ½ interest in the community estate…

the deceased's ½ interest in the community estate.

community property and there are no survivors…

all of the community.

N/A

NOTE: If there are no surviving descendants, the separate property of the deceased (which is not inherited by the surviving spouse) passes in the following order: (1) if both of the decedent's parents survive, each receive one-half, (2) if only one parent survives, that parent receives one-half of the remaining property and the other one-half is divided among the deceased's siblings and any descendants of the predeceased siblings, and (3) if there is no surviving parent the remaining property is divided equally among the deceased's siblings or their descendants.

If the deceased had no surviving descendants, parents, siblings and there are no descendants of siblings, all of the separate property is inherited by the surviving spouse.

NOTE: Effective April 17, 1997, spouses may at any time partition or exchange between themselves any part of their community property, and property so transferred becomes separate property. As intestate distribution provisions differ for separate and community property, the possible existence of such an agreement should be considered when determining the property interests of surviving spouses or children. Effective January 1, 2000, spouses may at any time agree that all or part of the separate property owned by either or both of the spouses is converted to community property.

Texas (On or After September 1, 1993)

If the property was…the spouse inherits…the children or their descendants inherit…

the separate property of the deceased and there are surviving descendants

1/3 life estate in the real property and…

the remainder of the real property, but subject to the life estate

the separate property of the deceased and there are no surviving descendants

½ of the deceased's real property

N/A

community property and there are surviving descendants…

all of the community estate if the children or their descendants are the child/children of both the deceased and surviving spouse… ½ interest in the community estate if the child/children of the deceased spouse is/are not a child/children of the surviving spouse…

nothing if they are the child/children of both the deceased and surviving spouse.

all the deceased community property if the child/children of the deceased spouse is not the child of the surviving spouse.
community property and there are no survivors ...all of the community.N/A

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SI DAL01110.515 - Ownership in Fee Simple or Less Than Fee Simple - 07/08/2008
Batch run: 01/27/2009
Rev:07/08/2008