SPOUSE HOMESTEAD RIGHTS

By: James M. Bright, Attorney at Law

Occasionally this firm runs into the situation where there is confusion between the rights of the children of a first marriage and the rights of a current surviving spouse of the decedent as it regards the family homestead.

A typical scenario might be one of the following:

* Husband was married before and had three children with his first wife. He and his first wife purchased a home together.

* Husband married his second wife and continued to be married to her at the time of his death. They lived together in the same home purchased with the first wife.

* Alternate possibilities:

1. Husband, in order to protect his second wife, left a will that named his second wife as devisee of the home, or

2. Husband, while he was still married to his first wife, executed a will naming his first wife as sole beneficiary and then his children equally if his first wife predeceased him (which she did), or

3. Husband signed a new Will (after his second marriage) naming the children of his first wife as beneficiaries of the family home, or

4. He died intestate (i.e., without a will).

Keep in mind that this article is only examining the preceding fact scenarios as they relate to a “probate homestead.” “Probate Homestead” is defined as a homestead set apart by a court for the use of a surviving husband or wife and minor children out of the common property or out of the real estate belonging to the deceased. This article is intended to cover only the narrow subject of spousal survivor rights to the homestead and does not address other property issues.

The above recited alternative fact scenarios are discussed as follows:

POSSIBILITY 1- If husband left a will giving the homestead to his second wife, when the will is probated, the surviving spouse will receive clear title to the homestead property and can do whatever she desires with it.

POSSIBILITY 2, 3 & 4 all fall into the same category and fall under the protection of the Texas Constitution. The surviving spouse will have a life estate and be able to live in the home for the remainder of her life. The three children will have a remainder interest. Although children will own legal title to the home – they cannot sell it or occupy it until after the surviving spouse dies or it is abandoned.

Article XVI, Section 52 of the Texas Constitution “On the death of the husband or wife, or both, the homestead shall descend and vest in like manner as other real property of the deceased, and shall be governed by the same laws of descent and distribution, but it shall not be partitioned among the heirs of the deceased during the lifetime of the surviving husband or wife, or so long as the survivor may elect to use or occupy the same as a homestead, or so long as the guardian of the minor children of the deceased may be permitted, under the order of the proper court having the jurisdiction, to use and occupy the same.”

This Texas Constitutional right offers protection to a surviving spouse so that she cannot legally be evicted from the home, but also can be the source of much angst as to the duties of the surviving spouse and duties of the children of the first marriage.

If you are a surviving spouse and you are not familiar with these rights as guaranteed by the Texas Constitution, you are encouraged to find an attorney of your own choosing who is experienced in the laws of intestate succession to discuss these matters with you.