By: James M. Bright
Attorney at Law

The following is provided for informational purposes only and is not, nor should it be construed as legal advice.

The first and most important way to protect homestead or any other rights of a surviving spouse is to have a valid and current Texas will that clarifies the testator’s intent as regards his/her surviving spouse.

There are cases that occur by either accident or design where a surviving spouse does not own a legal title interest in real property. Their rights may be limited to a simple homestead interest. A non-exclusive list of examples includes the following:

• A person who was previously married, owned a home and who had children from a prior marriage may create unintended homestead complications. If they leave a will naming children as beneficiaries of the homestead, the facts set forth in this article may apply.

• If someone dies intestate and is survived by lineal heirs from a prior marriage, the facts set forth in this article may apply.

• A common source of confusion comes from the decedent who has an old will written before his marriage to his surviving spouse. The surviving spouse may be very dependent upon homestead protections.

Before we can understand the homestead rights of a surviving spouse after the first spouse has died, we must have a rudimentary understanding of the nature of a homestead in Texas.

A greatly oversimplified explanation of this right is as follows:

• It is a Constitutional right under Article XVI of the Texas Constitution;
• It applies to both urban or rural real estate;
• Homesteads are protected from creditors except for a purchase money security interest (i.e., the loan received when the property was financed) or from liens given to improve the property;
• It can be residential and/or business property;
• A homestead is not subject to administration in a decedent’s estate (i.e., Executor cannot force the surviving spouse to sell the property unless the surviving spouse is willing to do so);
• A surviving spouse has the right to occupy the homestead property for as long as he/she desires for the rest of his/her life;
• Homestead rights may be characterized as rights to possession similar to a life estate. For example, the children of the deceased spouse may have legal title to the property, but their title is burdened by the surviving spouse’s superior right to possession.

Even though the homestead rights of surviving spouses have been fairy well defined by the Texas Constitution, some rather strange questions may arise when applying these rights to ordinary fact situations. The following are just a few of the questions that may arise which sometimes yield surprising answers.

If the surviving spouse does not occupy the homestead property, have homestead rights been abandoned? Probably not. It is very difficult to prove that a property has been abandoned. There are even cases where the surviving spouse has rented the property to others or even lived in a different locale; yet, the courts have found that the homestead was not abandoned.

If something needs repair, who is responsible to make repairs? The surviving spouse will be responsible for making repairs and generally maintaining the property, but the duty to repair does not go so far as to require that the property be maintained in the same condition that existed when the homestead right was originally established.

If there is still an amount due on a note, who is responsible for the payment? The answer is two-fold. Typically, the surviving spouse will be responsible for protecting the interest of the remaindermen (defined as those persons who hold legal title to the property which is subject to the homestead rights of the surviving spouse) by paying the interest on existing mortgages, but the remaindermen will be responsible for making principal payments. Obviously, this is problematic from the start if one or the other fails to pay his/her portion.

If a part of the homestead property receives rents or royalty payments, who has a right to receive those payments? Normally, the surviving spouse will have that right to receive rents and royalties.

Who pays insurance premiums on the property? The surviving spouse is not required to insure the property against loss; therefore, no liability attaches to the surviving spouse for loss by fire or other means unless it can be clearly demonstrated that he/she caused the loss through their own act or omission. It is also interesting to note that if the surviving spouse does purchase insurance, even though they are under no duty to do so, the proceeds of any loss will be paid to him/her, and the remaindermen will have no claim to the insurance proceeds.

What if the surviving spouse decides to remodel or otherwise improve the property, is he/she entitled to be reimbursed for those improvements even though they add to the value of the remaindermen’s estate? The general answer is no. There can be no reimbursement for improvements, and that burden cannot be unilaterally placed upon the remaindermen. There is, however, a 1939 case out of the Texas Court of Civil Appeals which did allow reimbursement to the surviving spouse when it was proven that she had a bonafide belief that she was the owner in fee simple when the improvements were made.

Can the surviving spouse sell the homestead even though he/she does not hold actual legal title? There is some authority in a 1955 Supreme Court case that states basically that it can be sold if the proceeds are required to pay some of those debts which were owed by the community prior to the decedent’s death. The case of Grant v. Marshall, 280 S.W.2nd 559 (1955) even goes so far as to say that the proceeds of the sale may be exempt from creditors, and the surviving spouse may be able to reinvest those funds in a new homestead. It is suggested that if you wish to do this, it could be an example of the proverbial “slippery slope” so it should not be done prior to extensive research regarding the relative rights and duties of the remaindermen as well as the surviving spouse.

As with any estate matter, you should always proceed only after exercising the right to consult with an attorney of your choice who is familiar with the intricacies of homestead law in Texas. Beware of over-simplified answers, including those in this article, until your particular situation has been adequately examined by the attorney of your choice

James Bright is admitted to practice before the Federal Courts for the Southern District of Texas and Eastern District of Texas as well as all of the Justice Courts, Probate Courts, County Courts at Law, District Courts, Courts of Appeal and Supreme Court for the State of Texas. He maintains an office in Houston and by appointment another at 208 McCown Street in the heart of historic Montgomery. Contact may be made by telephone (936) 449-4455 or (281) 586-8277. For more information about wills or probate in Texas, please see-