Surviving Spouse Homestead Right

Homestead Rights in Texas for a Surviving Spouse

As a married individual, you may wonder what rights you have to your home in the event of your spouse’s death. Article XVI, § 52 of the Texas Constitution can help answer this question.

Constitutional Rights 

Article XVI, § 52 of the Texas Constitution states that,

“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.”

What this section essentially tells us, is that surviving spouses have a homestead right in the house they lived in with the deceased spouse for their entire life or until they voluntarily relinquish homestead protection. A surviving spouse cannot be forced to leave the homestead property by the heirs of the deceased spouse. This right exists whether the homestead is community property or the deceased spouse’s separate property. For example, let’s say Emily marries John, and John has two children from a previous marriage. Even if John bought the homestead before marrying Emily, and it was his sole and separate property, as John’s surviving spouse, Emily still has a homestead right in that house. If John’s children do not want Emily in the house, the only thing they can do is wait for her to pass away or voluntarily leave. John’s children cannot make her vacate the property.

However, it is worth noting that this section of the Constitution does not carry over to a surviving spouse’s new spouse if they were to remarry. Back to our example, if Emily marries Sam after John dies, Emily and Sam may live on the property. However, if Emily dies, her homestead rights die with her, and Sam will have to vacate the property. John’s residence will pass according to his will or to his heirs in accordance with Texas intestacy law.

The Texas homestead laws can be complex, and it is important that you contact an experienced real estate or probate lawyer if you have any questions or concerns about these issues.

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