Updated September 5, 2026. Quick answer: Texas has no spousal elective share to take against a will, because it does not need one: a surviving spouse already owns an automatic one-half interest in community property under Tex. Estates Code Title 2, and a will can only dispose of the decedent’s own half plus any separate property.
What Texas actually sets out
| What the statute sets out | What it says |
|---|---|
| Texas Estates Code Title 2, Subtitles C and E reviewed in full; no elective-share/right-of-election chapter exists anywhere in either subtitle | surviving spouse automatically retains an undivided one-half interest in community property by operation of law; a will may freely dispose of the decedent’s separate property and the decedent’s half of community property |
| What protects the surviving spouse instead | not applicable; no statutory right of election exists against a will |
| Regime type | no elective share; community property |
| Can it be waived | not applicable; nothing to waive; community-property character can be altered only by a valid partition/exchange or marital property agreement |
| Time limit to file | not applicable |
How it works in practice
- Community property already gives the surviving spouse automatic ownership of half of what the couple earned during the marriage; a will can only dispose of the decedent’s own half plus separate property, so there is no separate election to make.
- Not applicable here: there is no elective share to plan around in the first place.
- Waiver: Not applicable; nothing to waive; community-property character can be altered only by a valid partition/exchange or marital property agreement.
- There is no filing deadline here because there is no election to file.
The national picture, including the Uniform Probate Code sliding-scale schedule that a minority of states actually use, is on the elective share calculator page; this page is the record for Texas specifically, and its own numbers above should be used instead of the calculator’s national default for a Texas estate. The one thing that reliably defeats an elective share in every state that has one is explained on whether a prenup can waive the elective share. A newly widowed reader working through the fuller list of irreversible decisions, of which this is one, can start from the surviving spouse checklist.
What this page does not settle
- This session confirmed the core figure above against a primary or verbatim-mirror source, with one open point: Proven structurally (no such chapter exists in the reviewed subtitles) rather than via a single negative-statement sentence; corroborated by multiple secondary sources.
- A state can amend or repeal this section without the page around it changing, and a detail specific to a reader’s own situation, such as a pending divorce, a premarital agreement, or property held jointly with right of survivorship, can change which part of the statute actually applies.
- Whether a revocable trust changes the outcome in Texas is explained above; that answer is specific to this state and does not generalize to any other one.
- Every quotation here was read against the source on September 5, 2026. Nothing on this page is legal advice, and the exact dollar or percentage amount a court awards depends on facts this page cannot know.
Whether this statute reaches a given family’s actual facts is decided by a court, not by this page. Nothing here is legal advice, and no one should sign a waiver or forgo an election on the strength of a web page.
Sources
The sources above were retrieved and read against the state text on September 5, 2026. Every quotation on this page was checked against those bytes.