Question: I heard that women in Texas could always own property, and has there ever been a law in Texas that stated that when a father died all of his property would go to his first son?
Answer: Many of the laws adopted by the State of Texas at its inception came from the Spanish Common Law rather than the English Common Law. That included a woman’s right to own property. At the time Texas entered the Union, it was the only state to grant women property rights from the very beginning.
In Texas, Women who married turned control over their property to their husbands, but if they never married, all decisions pertaining to their property remained within their domain and authority. A married woman did have a say, however, and it was presumed that a husband did not dispose of his wife’s property without her knowledge. The husband was allowed by law to do with his wife’s separate property as he wished, so long as it was used for the support of the family. A wife who discovered that her husband had mismanaged her separate property could seek relief in court. Single women could sue, be sued, enter into contract, and own property, while married women were treated almost the same as a minor child. If a husband thought it was best to sue on behalf of the wife he could, and if someone was going to sue the wife regarding her separate property, they would actually have to sue the husband.
Texas has always been a state that recognized community property. Community property is property that is acquired during marriage. Women who married owned marital property with their husbands, but their husbands had 100 percent control over all of the married couple’s community property.
Although a single woman in Texas could always possess, control and dispose of both real and personal property, the rights of married women took many years to equal that of the single woman. In the beginning, a married woman’s property was controlled by her husband, but eventually that changed, and a married woman could control her own separate property (property she had before she married).
The Texas Constitution, Article 1, Bill of Rights, Section 26 deals with primogeniture, or the right of the first-born son to take all of the father’s property upon the father’s death. The law states, “…nor shall the law of primogeniture or entailments ever be in force in this State.” Primogeniture is the common law right of the first-born son to inherit the entire estate, leaving nothing to younger brothers or sisters. Entailments is the process of limiting an inheritance to a specific sequence of heirs, such as through the first-born child and his first-born child and so on. Keep in mind that an inheritance is what occurs without a will, and heirs are determined once a person dies. With a Will, a person may be a beneficiary of the estate, but they are not an heir of the estate. The laws concerning testamentary Wills allow a person to give their property to whomever they choose with very few exceptions.
So, Texas has never allowed any laws that require the property of a father to go to his first born son; however, any person may write a Will that bequeaths his or her property as they wish, it just cannot be automatic (which is what the law of intestate, without a Will, is).
This article is meant for informational purposes only and not as a substitute for sound legal advice. Direct questions to Ask the Lawyer to firstname.lastname@example.org or via the Facebook page for the Dalhart Texan.