Surviving Spouse Homestead Rights in Texas
In Texas, a surviving spouse has a right to continue living in the family homestead, and a will cannot take that away. The homestead cannot be forced into a sale by most creditors, and it is protected from partition against the surviving spouse. If the decedent leaves the home to someone else, the spouse can generally still occupy it for life, and some ownership interests pass to the spouse under intestacy.
The right to occupy
Texas homestead law gives the surviving spouse the right to occupy the family home for as long as they live there, with some exceptions. If the home was community property, the survivor already owns half, and the other half cannot be sold in a way that forces the survivor out. If the home was the decedent's separate property, the surviving spouse still generally has a right to remain there for life, if the property was their homestead.
Protection from creditors
Texas protects a homestead from most unsecured creditors, including those of the decedent, within the limits of acreage and the exceptions the law allows. The exceptions include mortgages, home equity loans, property taxes and properly documented improvements. That means a lender with a lien can still foreclose if payments stop.
Allowances
Texas also gives the surviving spouse and minor children an allowance in lieu of exempt property and a family allowance for support during the administration of the estate. The surviving spouse can ask the court for these. They are paid ahead of most creditors.
How wills interact with homestead rights
- A will can leave the house to children, but the surviving spouse's right to live there generally remains.
- A will can leave a life estate to the spouse and the remainder to children, which many blended families use.
- A transfer on death deed or trust can pass the home, but it is still subject to the spouse's homestead rights.
What to do
If you are a surviving spouse, keep living in the home, keep the property insured and the taxes paid, and do not sign documents transferring the house without advice. If you are an executor or child of the decedent, talk to an attorney before listing or selling a house in which a surviving spouse lives. For planning, see blended family trust planning.
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Book Free ConsultationFrequently asked questions
Can my children force me to sell the house after my spouse dies?
Generally no, as long as the house is your homestead. The law protects your right to occupy.
What if I remarry or move out?
Moving out or abandoning the homestead can end the right, so ask an attorney before you change your living situation.
Does the right apply if the house was my spouse's separate property?
A surviving spouse generally keeps the right to occupy it if it was their homestead, though details depend on the facts.
Do mortgages still need to be paid?
Yes. Homestead protection does not wipe out a valid lien.