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San Antonio Probate, San Antonio Estate Planning, San Antonio Elder Law


San Antonio Express-News
September 19, 2006

Surviving Spouse Homestead Rights

copyright 2006, Paul Premack

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Dear Mr. Premack: In preparing a Will with an attorney, can I, as the spouse have it say that my half of the home must be sold with the proceeds going to our son? My husband also has two children from a previous marriage. If this is not possible, do I automatically inherit the entire home upon his death and he likewise in the event of my death or are those two children (from his previous marriage) entitled to a percentage of the property? - RAE


Homestead in Texas holds a special legal position for spouses. The statutes and constitution give the surviving spouse the right to occupy the homestead, even if the other spouse dies and even if the Will of the deceased spouse calls for something else.


You are legally allowed, in your Will, to give your half interest in the house to your son. But you are not allowed to require that the house be sold so that he can receive his funds, unless your husband elects to allow the sale. Your son can own a half interest in the house (while your husband retains his half interest) but that ownership right is secondary to your husband’s legal right to occupy the property as his homestead.


Your husband’s other children have a mixed role. State law says that they will inherit his half of the house -- along with your son, their half-brother -- if 1) your husband is the first to die, and 2) your husband does not take action to have a different legal outcome. What kind of action? He could make a Will with specific instructions, he could sign a deed giving you or them specific rights, or he could put his half of the house in trust with specific instructions.


But whether he leaves specific instructions or he allows state law to give his half to his children, you also have protected homestead rights. So even if his children become owners of his half if he dies first, your right to occupy the property trumps their ownership rights. Just as your son cannot interfere with his occupancy if you die first, his children cannot interfere with your occupancy until you elect to move out or until you pass away.


You do not automatically inherit the house from your husband. State law does give spouses certain inheritance rights, but those rights are limited when one spouse has children from a prior marriage. Those state laws may be bypassed if your husband takes action to have a different legal outcome, but that is far from automatic.


If you and he do decide that his half of the house should become your property upon his death, a very straightforward strategy is for you both to sign a Community Property Survivorship Agreement. It states that all community property, including the house, passes to the surviving spouse when either spouse dies. By gaining this simplicity, you are also losing the ability to give your half of the house to your son if you die first.


An alternative: you could have your attorney write a provision into your Will stating 1) that you leave “life estate” of your half to your husband, with the remainder to your son, or 2) that you leave your half in trust for your husband during his lifetime, but when he dies that half goes to your son. You can achieve most of your goals but you cannot sell the house out from under your husband, nor can he do that to you. None of it can be done automatically; you must take action by preparing a proper legal plan.

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Disclaimer: This column answers a specific legal question asked by an individual in Texas. The answer may or may not match your individual situation. Be careful not to treat this column as specific legal advice, as it may not meet your individual needs. It may give you a solid basis for discussion with your own attorney.  You should consult with your personal attorney before you take any action on this or any legal issue. Also, please be aware that laws change, so  this column is valid only as of the date it was published. This communication does not create an attorney-client relationship between the author and the reader.

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