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).

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

1. 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. 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. 3. 

   An owner of a life estate, dower interest, or usufruct (Louisiana only) may use the property on which they hold 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. 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 their 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. 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.