Homestead Rights of a Surviving Spouse in Probate

Texas law provides for strong protection of a family’s home. The property protected is called the “homestead.” In probate matters, homestead issues often arise when one spouse passes away owning a separate property interest in a home where both spouses live.

For example, let’s take a husband and wife who have been married for 15 years, it is the second marriage for each, and each has children from a previous marriage. The husband bought and paid in full for the residence before marriage, and they have been living in that residence during their marriage. Then the husband passes away without having a will.

The residence will likely be treated as the husband’s separate property, meaning that the wife does not own the residence. Under Texas intestacy law, the wife will inherit only a 1/3 life estate in the residence. The 1/3 life estate means that the wife is not a permanent owner of the property but has only a limited (1/3) right to the property while she is alive. The husband’s children own the residence permanently, except for the 1/3 life estate for the wife.

However, one of the benefits of Texas homestead law is that it allows the wife to continue to live in the residence for the rest of her life, as long as she keeps up some obligations. Some of those obligations are that the surviving spouse must live in the residence as her primary home, and she must pay property taxes and expenses of upkeep on the residence.