Estate Planning for Married Couples

Reviewed by Turner Henington, attorney, Texas Bar No. 24148206 · Updated October 2026

Most of the plans we write are for married couples, and most couples come in thinking “everything goes to my spouse anyway.” Sometimes that’s true. Often it isn’t, and even when it is, it can take a court process to prove it. Henington Lewis Law Firm PLLC helps married couples in Austin and Travis, Williamson and Hays Counties set up a plan that takes care of the surviving spouse without probate and passes everything clearly to the children after both are gone.

How Texas Community Property Affects Your Estate Plan

Does My Spouse Automatically Inherit Everything in Texas?

Only in some cases. If you die without a will:

• Community property goes entirely to your spouse only if you have no children, or all your children are also your spouse’s. If you have a child from another relationship, your half goes to your children (Estates Code § 201.003).
• Separate property is split: your spouse gets one-third of your personal property and a life estate in one-third of your land, and your children get the rest (§ 201.002).
• Even when your spouse inherits everything, they may still need an heirship proceeding or affidavit to prove it before a title company or bank will move the house or accounts into their name.

Joint Trust, Two Wills or a Survivorship Agreement?

For a deeper comparison, read What Is the Best Type of Trust for a Married Couple in Texas?

If One of You Becomes Incapacitated

People plan for death and forget about a stroke, dementia or an accident. In Texas, neither spouse can sell, convey or borrow against the homestead without the other spouse joining in (Family Code § 5.001). If one of you can’t sign and there’s no power of attorney or trust, the healthy spouse may need to go to court. A statutory durable power of attorney, a medical power of attorney and a trust with clear incapacity terms let each of you act for the other without a judge.

Tax Points for Married Couples

• Estate tax: Texas has no estate or inheritance tax. The federal exemption is $15 million per person in 2026, so a married couple can generally pass $30 million free of federal estate tax with proper planning, including filing to preserve the first spouse’s unused exemption (portability).
• Step-up in basis: When one spouse dies, federal tax law generally resets the cost basis of both halves of community property (Internal Revenue Code § 1014(b)(6)), which can sharply reduce capital gains tax if the survivor sells. Holding assets as community property, rather than converting them, can matter.
• Homestead exemption: You keep your residence homestead exemption when your home is in a qualifying trust (Tax Code § 11.13(j)).

What a Married Couple’s Plan Usually Includes

• A joint revocable living trust, or wills if a trust isn’t needed.
• Pour-over wills that catch anything left outside the trust and name guardians for minor children.
• A deed moving your home into the trust.
• Statutory durable powers of attorney for each spouse.
• Medical powers of attorney, directives to physicians and HIPAA releases.
• Beneficiary designations coordinated with the trust.
• Optional: a marital property agreement if you want to clarify separate and community property.

Who Will Prepare Your Plan

Turner Henington and Samantha Lewis founded Henington Lewis Law Firm, and one of them works on every plan we write. Turner is a former KPMG tax accountant and a graduate of The University of Texas School of Law. Samantha has nearly a decade of experience in Texas and federal courts and handles estate disputes, so she drafts with an eye to how plans get challenged. Our office is at 1101 S. Capital of Texas Hwy, Bldg G, Suite 150-C, near West Lake Hills, and we also meet by phone and Zoom.

What Our Clients Say

Estate Planning for Married Couples FAQ

Does my spouse automatically inherit everything in Texas?

Not always. Your spouse inherits all community property without a will only if all your children are also your spouse’s children. Your separate property is split between your spouse and children. And even when your spouse inherits everything, a court proceeding or affidavit may be needed to prove it.

What is the best trust for a married couple in Texas?

For most married homeowners, a joint revocable living trust. You both stay in control as trustees, the survivor keeps control without probate, and the trust says who inherits after both of you. Couples with large estates or children from prior marriages may need separate shares or separate trusts.

Do married couples need separate trusts?

Usually not. Most couples use one joint trust. Separate trusts make more sense if you have children from prior relationships, significant separate property or very different goals.

Who do married couples use to create a living trust?

An estate planning attorney licensed in your state. In Texas, the trust should reflect community property law and be paired with a deed moving your home into the trust, pour-over wills and powers of attorney.

What happens if my spouse becomes incapacitated?

You can’t sell or borrow against your homestead without your spouse’s signature. Without a power of attorney or trust, you may need a court’s permission. Each spouse should sign a durable power of attorney and a medical power of attorney.

Do we need a will if we have a living trust?

Yes. A pour-over will moves anything left outside the trust into it and names guardians for minor children.

Does Texas have an estate tax?

No. Texas has no estate or inheritance tax. The federal exemption is $15 million per person in 2026, and a married couple can generally pass $30 million with proper planning.

Can we keep our homestead exemption if our house is in a trust?

Yes, if the trust is a qualifying trust under Texas Tax Code § 11.13(j). We draft our trusts to qualify and prepare the deed.

How much does a living trust cost for a married couple?

Every plan is a flat fee, quoted in writing after a free consultation, so you know the cost before any work starts.

Sources and Texas Law Cited

The legal and tax statements on this page are based on the primary sources below. Laws and figures change, and this page was last reviewed in October 2026. This page is general information, not legal advice for your situation.

• Texas Family Code § 3.001 – Separate property
• Texas Family Code § 3.002 – Community property
• Texas Family Code § 3.003 – Presumption of community property
• Texas Estates Code § 201.002 – Separate estate of an intestate
• Texas Estates Code § 201.003 – Community estate of an intestate
• Texas Estates Code § 112.051 – Community property survivorship agreements
• Texas Family Code § 5.001 – Sale or encumbrance of homestead
• Texas Tax Code § 11.13 – Residence homestead exemption (qualifying trusts)
• Texas Comptroller – Residence Homestead Exemption FAQ
• 26 U.S.C. § 1014 – Basis of property acquired from a decedent (including § 1014(b)(6) for community property)
• 26 U.S.C. § 2010 – Unified credit and portability
• IRS Rev. Proc. 2025-32 – 2026 estate, gift and GST exemption ($15 million) and annual exclusion ($19,000)

Keep Reading

• Estate Planning for Blended Families
• Estate Planning for Young Families
• Estate Planning for Retirement
• What Is the Best Type of Trust for a Married Couple in Texas?
• Does a Surviving Spouse Need Probate in Texas?
• Estate Planning for Couples With Unequal Assets
• Do I Need a Trust If I Own a Home in Texas?
• Austin Estate Planning Attorney
• Estate Planning for Every Stage of Life