San Antonio Express-News
February 7, 2006

Protecting the Spouse in 2d Marriage

copyright 2006, Paul Premack

You must distinguish between "survivorship rights" and "homestead rights". Texas law does not automatically grant survivorship rights (automatic transfer of ownership to the surviving co-owner upon the death of a different co-owner). On the other hand, Texas law does automatically give homestead rights to a surviving spouse, even a second spouse. Homestead rights do not confer ownership; rather, they allow occupancy of the home to continue undisturbed for the surviving spouse.

Section 284 of the Probate Code says, "The homestead shall not be partitioned among the heirs of the deceased during the lifetime of the surviving spouse, or so long as the survivor elects to use or occupy the same as a homestead…" Article 16, Section 52 of the Texas Constitution has almost identical wording.

The only way they can seek partition is if 1) you waived your homestead rights by agreement with your husband, or 2) you have voluntarily moved out of the home and established another homestead. Otherwise, even though your late husband’s daughters own half the house, they cannot force you to sell the house by partition, nor can they force you to move out.

Dear Mr. Premack: I raised my stepdaughter from the age of five. After a bitter family argument we no longer communicate. What rights does would she have to our home and investments in the event of the death of me or my wife (her mother). – JT

A person becomes your heir when you, as the owner of an asset, elect to name that person as an heir. If you do not make a choice of your own – expressed in a legal estate-planning document like a Will, a Trust or an account designation – then the state law on intestacy applies, allowing certain people to inherit according to a pattern set out in the law.

If you die first your wife inherits your property, unless you say otherwise in your estate plan. Her daughter has no opportunity to inherit upon your death, unless you elect to give her something. Her daughter is not your heir under the state’s pattern. What happens, though, after your wife has inherited all your assets? She can make an estate plan identifying specific heirs (including or excluding her daughter), or she can refuse to make a plan (in which case her daughter does inherit her estate under the state’s pattern).

On the other hand, if your wife dies first then the assets she owns will either 1) pass to you according to her estate plan, or 2) if she makes no estate plan, pass to her daughter according to the state’s pattern. Even if her daughter inherits, you retain your half of any community property and you retain homestead occupancy rights.

To maintain control, then, both you and your wife should have proper legal estate plans in place. That way you each get to decide whether to include or to exclude her daughter instead of having state law dictate the outcome.