Dear Mr. Premack: My parents were the original owners and builders
of their homestead in the '50s. Years later they placed it in a trust with
my brother and me as trustees. My father built a house for me on the
property, and I have lived there since 1988. Mom passed away and Dad
remarried for 8 years till he passed this year. Would that woman have the
right to stay, and does she have the right to make me leave? She
won't/can't buy us out and she is trashing the property. - MAC
When your parents owned the homestead together, it was their community
property. They each owned a 50% share. When they created the trust and
transferred the homestead into the trust, they were entering into a
binding contract regarding the use, enjoyment and disposition of the
Trust agreements can be highly customized to achieve a
wide variety of goals, depending on what the trust creators (the
“grantors”) desire. I do not know what goals your parents had when they
created their trust, but you are asking about any rights your father’s
second wife may have… so let’s look at this in the light most favorable to
you, to see just how much control she may have under those circumstances.
From your point of view, the trust is best if it says, “When both
parents die, our two children receive fee simple title to our homestead,
outright”. If so, you and your brother became owners of the homestead,
including your parent’s house and the house your father built for you to
occupy. The trust ended at that point, after transferring title to the
land and houses to the two of you.
But your father remarried, and
since you do not mention that he entered into a prenuptial agreement with
his second wife, I’ll proceed on the assumption that he did not do so.
When he occupied the homestead with his second wife, she automatically
gained homestead occupancy rights. Marital homestead rights do not depend
on ownership; they depend on marital status. Texas law grants homestead
rights. She has not voluntarily surrendered those rights. You cannot take
those rights away from her.
Thus, even if you and your brother
inherited the homestead property via the trust, your ownership rights are
trumped by her homestead rights. You are forbidden to interfere with her
occupancy and use of the property.
Your father made two legal
mistakes. First, he entered into a second marriage without insisting on a
prenuptial agreement. He could have insisted that she agree – before he
would marry her – that upon his death she would vacate the homestead. If
she had refused that condition, he should have refused to get married.
Why? Because he had a commitment to his already existing family. He
had an agreement with his first wife (your mother) as to how their
homestead property would be used. Getting married again without a prenup
violated his promise to his first wife. And as part of that commitment to
his first family, he had very kindly built a house for you on the
homestead land. His second mistake, then, was leaving you in a position to
lose that home upon his death.
The house you occupy is a fixture
upon the homestead land. Under Texas law, even if you own the homestead
land and the houses (with your brother) that ownership is secondary to his
second wife’s legal homestead rights. Both houses are part of the
homestead property. She has the right to stay there. She has the right to
make you move out and to use your house for her own purposes. She also has
the legal obligation to maintain the property -- so if she is letting it
go to waste, you may have a cause of action against her to force her to
properly care for the homestead.
Your father may not have realized the legal impact of his second marriage.
The situation he left to his children can be a warning to others: don’t
make the same mistakes. At the very least, insist on a prenuptial
agreement prior to entering into any second marriage.