In Texas, for individuals that died after September 1, 1993, the relevant statutes for determining intestate proceedings are Texas Estate Code §§ 201.001 to 201.003. Mineral rights are a form of real property and will therefore be governed by the same laws of marital property and as other real estate. There are three other primary factors that affect how property is distributed by intestacy in Texas: the marital status of the decedent, whether the decedent had any children or descendants, and lastly, whether the property is separate or community property.[1] A spouse’s separate property includes property brought into the marriage, as well as property acquired during the marriage by gift, will, or inheritance. If the mineral rights were acquired during marriage, then they are community property.[2]
In the most common situation, if the decedent was a married person with children or other descendants and the mineral interests were part of the decedent’s separate real property, then a life estate will be created whereby the surviving spouse takes a one-third life estate and children take all equally, subject to the surviving spouse’s one-third life estate. However, under the same scenario where the individual is married and with biological children, if the mineral interest is part of the community property, then the spouse will receive the deceased spouse’s interest.
It should be noted that in the case that the decedent is survived by a spouse and a child or other descendant who is not also a child of the surviving spouse, then the decedent’s share of community property, or mineral rights acquired during the marriage, will be distributed all to the children who take equally.[3]
If decedent has no descendants or parents, then the surviving spouse will inherit the entirety of the decedent’s probate estate.
In the case that the decedent is survived by a spouse and parents but with no children, then the surviving spouse will inherit all of decedent’s separate personal property and community property. The spouse will receive one-half of the real property with the parents receiving the remainder.[4]
If the person is an unmarried individual with children, the children will receive the entirety of the estate equally.[5]
If at the time, the individual was unmarried and had no descendants, then the distribution will depend on who has survived the descendant. If the decedent is survived by both mother and father then half is distributed to the mother and half to the father.[6] If the decedent is survived by only one parent, then the parent will receive it in its entirety.[7] If the decedent is not survived by a spouse, any descendants, or their parents, the estate be distributed to any living siblings of the decedent.[8]
This link provides useful visual aids in determining how the mineral interests would pass through the intestate process in Texas.
However, because the laws in effect at the time an individual’s death will determine how their interests and estate should pass, it is also important for landman to consider prior law as well. As stated earlier, the descent and distribution described above applies to individuals who died on or after September 1, 1993. However, in order to determine ownership for individuals who died prior to September 1, 1993, the previous law will have to be applied.
The rules regarding separate property remained the same before and after 1993.[9] However, the rules regarding a decedent’s community property were slightly changed.[10]
For a married individual with children who died before September 01, 1993, the decedent’s community real property will be distributed with entirely to the children equally, while the spouse keeps their half of the community interest.[11] The current law distinguishes between children born in and out of the decedent and surviving spouse’s marriage. If any children or descendant of the deceased spouse is not a child or descendant of the surviving spouse, then the old rule applies, and the children will inherit equally.[12] If the children are all also children of the surviving spouse, then the surviving spouse will inherit the decedent’s share of the community property.
[Example 1: If Joseph died before September 01, 1993, then his children will inherit his 50% interest in any mineral rights that were community property. However, if Joseph died after September 01, 1993, and all his children were also children of his surviving spouse, Betty, then Betty will inherit Joseph’s 50% interest in any mineral rights that were community property. However, if Joseph had a child from a prior marriage, then Betty will retain her 50% interest and the children will equally share in Joseph’s 50% share of the mineral rights.]
[1] Tex. Est. Code Ann §§ 201.001 to 201.003 (West).
[2] See Texas Family Code, Sec. 5.01(b).
[3] Id. at § 201.003(c).
[4] Id. at §§ 201.001(c) to 201.002(c)(3).
[5] Id. at § 201.001(b).
[6] Id. at § 201.001(c).
[7] Id. at § 201.001(d)(1).
[8] Id. at § 201.001(e).
[9] Ronald Lipman, 12 Changes to the Texas Probate Code That Every Attorney Should Know, 33 Hous. Law. 30 (JULY/AUGUST 1995).
[10] Id.
[11] Tex. Prob. Code Ann. Sec. 45 (Vernon Supp. 1993).
[12] Lipman, supra note 9, at 30.