Died without a will in Texas: separate vs. community mineral rights

Why inherited minerals are almost always separate property

Families often assume that everything a married person owns at death is community property. Under Texas Family Code § 3.001, property owned or claimed by a spouse before marriage, and property acquired by the spouse during marriage by gift, devise (under a will), or descent (by inheritance), is that spouse’s separate property.

In county mineral chains, that distinction changes the math completely. If a grandmother deeded a mineral interest to her daughter as a gift, or if the daughter inherited the mineral interest from her parents, that mineral interest remains the daughter’s separate real property even if she was married for 50 years. Only minerals purchased for consideration during the marriage with community funds (and not Partitioned or gifted between spouses) are community real property.

Separate real property under section 201.002

When a person dies intestate leaving a surviving spouse, Texas Estates Code § 201.002 divides separate real property (which includes mineral and royalty interests) differently from separate personal property (such as bank accounts or already-paid royalty checks in a bank account):

Once the surviving spouse dies, the 1/3 life estate terminates by operation of law and the children (or their descendants or grantees) hold the full 3/3 fee mineral interest.

Community real property under section 201.003 and the 1993 date

When a mineral interest was purchased during the marriage and is community property, the surviving spouse already owns their undivided 1/2 of the community interest. Who inherits the decedent’s 1/2 depends on the date of death and the children:

• Deaths on or after September 1, 1993 (§ 201.003): If no child or descendant survives, or if all surviving children and descendants of the deceased spouse are also children or descendants of the surviving spouse, the surviving spouse takes the decedent’s 1/2 (owning 100% of the community mineral interest). If any surviving child or descendant of the deceased spouse is not a child or descendant of the surviving spouse (for example, a child from an earlier marriage), the deceased spouse’s 1/2 passes to all of the deceased spouse’s children and descendants, while the surviving spouse retains their own 1/2.
• Deaths before September 1, 1993 (former Probate Code § 45): Under the law in effect before September 1, 1993, if the decedent left any surviving children or descendants (even if all of them were born to the marriage with the surviving spouse), the decedent’s 1/2 of the community property passed to the decedent’s children and descendants, and the surviving spouse kept only their own 1/2. Because mineral chains often include deaths from the 1950s through the 1980s, title examiners apply the statute in effect on the date of death.

When no spouse survives (§ 201.001)

If the decedent was unmarried or widowed at death, Texas Estates Code § 201.001 passes all of the estate in sequence: (1) to the decedent’s children and their descendants; (2) if no child or descendant survives, equally to the father and mother; (3) if only one parent survives, 1/2 to the surviving parent and 1/2 to the decedent’s brothers and sisters and their descendants (or all to the surviving parent if no sibling or descendant of a sibling survives); (4) if neither parent survives, to the brothers and sisters and their descendants; and (5) if none of those survive, in two equal moieties to the paternal and maternal kindred.

Sources

1. Tex. Est. Code ch. 201, Descent and Distribution, §§ 201.001, 201.002, and 201.003. https://statutes.capitol.texas.gov/Docs/ES/htm/ES.201.htm#201.001
   Intestate succession rules for separate and community estates in Texas.
2. Tex. Fam. Code ch. 3, Marital Property Rights and Liabilities, §§ 3.001 to 3.003. https://statutes.capitol.texas.gov/Docs/FA/htm/FA.3.htm#3.001
   Definitions of separate property, community property, and the presumption of community property.