On August 16, 2018, America lost one of its greatest soul artists, Aretha Franklin. It was in the following days that the news reported that while Ms. Franklin passed away with a net worth a over 80 million, she did not leave a Last Will and Testament detailing how she wished for those assets to be distributed upon her death. With no Will, ultimately her estate will be allocated in accordance with the intestacy laws of Illinois. But, what if she had passed away in Texas? How would estate be allocated in accordance with the intestacy laws of Texas?
Intestacy is the legal condition for an estate when an individual passes away without leaving a valid Will. When one passes away without a Will certain laws goes into effect that dictate the distribution of estates assets. In Texas whether one was married, had children, and whether those children were born of marriage that existed at the time of one’s death effects the allocation of the estates assets. In the case of Aretha Franklin, when she passed away she was not married and was the mother of four living children.  Because Ms. Franklin was not married at the time of her death, her 80 million dollar estate would be governed under Section 201.001 of the Texas Estates Code.
If a person dies intestate does not leave a spouse, the estate to which the person had title descends and passes in parcenary to the person’s kindred in the order provided in this section. […] The person’s estate descends and passes to the person’s children and the children’s descendant’s. Texas Estates Code § 201.001(a)-(b).
So, what does the above statute mean? In short, when a person passes away intestate, leaving no spouse and only children, then all their property regardless of type is divided evenly among the children of the deceased. In the case of Aretha Franklin, her property would will most likely be divided amongst her four children.
The major curveball in the case of Ms. Franklin’s estate is that one of her four sons has special needs.  Because he is now set to inherit a large portion of the estate, her son could stand to loose multiple forms of aid including Medicaid and Social Security Support. Had Ms. Franklin prepared an estate plan which included a special needs trust, she could have provided him with additional income without risking his benefits.
What if Aretha Franklin had been married at the time of her death?
How an estate is allocated generally depends upon what type of property is owned, whether the couple left any children who were born to the marriage, and whether they were children of the deceased who were not the children of the spouse. For the purposes of probate law there are three main categories of property that become the subject of distribution at the time of one’s death: (1) Community Property; (2) Separate Real Property; and (3) Separate Personal Property. In this case, Aretha Franklin’s four sons were not born of the same person, and for the purpose of this article, let’s assume that at the time of her death her “husband” was not the father of her four sons. Had such been the case, her estate would be divided in accordance with Texas Estate’s Code Section 201.002 and 201.003. Assuming that that Ms. Franklin would have amassed most of her fortune while single, under these sections the surviving spouse would only be left with fractional interest in the separate property of Ms. Franklin. More specifically, the husband of Ms. Franklin under Texas intestacy laws would have been entitled to:
- 1/3 Life Estate in any Separate Real Property owned by Ms. Franklin at the time of her death;
- 1/3 of any Separate Personal Property owned by Ms. Franklin at the time of her death;
- 1/2 of any Community Real Property owned by the couple at the time of Ms. Franklin’s death; and
- ½ of any Community Personal Property owned by the couple at the time of Ms. Franklin’s death.
The remaining interest would then be disbursed among her four sons.
When a person dies intestate in the State of Texas, their estate is divided in accordance with the formulas found in the Texas Estate Code. Although most do not have extensive estate assets such as Aretha Franklin, the need for an estate plan could be just as important. Estate planning allows for one to account for a special needs child or to distribute their assets in the manner they wish. Overall, estate plans allow for an individual to have control over how they wish their estate to be managed and distributed.