Can Second Spouse Remain in Homestead?

This column first appeared in the San Antonio Express-News and on MySA.com on July 13, 2015.


Texas marital property law and the Texas constitution answer to your question. Texas is, as you know, a community property state. Anything that a married couple acquires during their marriage is community property – unless the item is acquired by gift, by inheritance, or the couple agrees in writing that it will not be community property. Note the definition says “acquires during their marriage”, which means that items owned by one spouse before the date of that marriage are not community property.

The house owned by your father-in-law was his separate property, because he owned it before he married wife #2. Further, the fact that title to the house was conveyed into a Living Trust while he was still married to wife #1 does not change its nature as his separate property. However, your father-in-law could have seen an experienced CELA and signed a variety of legal documents that would have changed the status of the property. For instance:

  1. He could have withdrawn the property from the Trust, vesting title back into his own name, and then could have signed a deed converting the house into community property.

  2. He could have signed a deed gifting a half-interest in the house to wife #2, or could have entirely gifted title to her.

On the other hand, it is possible that he left title as his separate property, and made efforts to reinforce its separate character. For instance:

  1. He could have insisted on a prenuptial agreement with wife #2 before they got married, or a post-nuptial agreement, confirming the separate nature of the house.

  2. He could have, in either type of agreement, asked wife #2 to waive her Texas homestead occupancy rights.

The homestead occupancy right belongs to wife #2 unless they were validly waived by her. Texas law recognizes her un-waived homestead right even if title is vested in a Living Trust, or if your father-in-law’s Will left the house to his two children. Her un-waived right exists even if the homestead was your father-in-law’s separate property. Her un-waived right forbids the Trustee or the heirs from interfering with her residence in the home. Only when wife #2 dies or abandons the homestead does her un-waived right end, removing the roadblocks faced by the beneficiaries of the Trust (or heirs under the Will).

Due in part to the strength of the widow’s homestead occupancy right, she also has legal responsibilities. One of them is to pay the property taxes in full and in a timely manner. As far back as the 1920’s our courts ruled that “It is certainly according to equity and good conscience to require the survivor to pay current taxes…” Additionally, Texas law requires the widow to keep the property in good repair and to pay the interest portion of any mortgage that may exist. The Trust or its beneficiaries must, by law, pay the principal portion of any mortgage and pay for insurance on the property.

Paul Premack is a Certified Elder Law Attorney with offices in San Antonio and Seattle, handling Wills and Trusts, Probate, and Business Entity issues. View past legal columns or submit free questions on legal issues via www.TexasEstateandProbate.com or www.Premack.com.

#CommunityProperty #HomesteadRights #PrenuptialAgreement

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Paul Premack, 2019-2020 President of the Texas Chapter of the National Academy of Elder Law Attorneys (NAELA) is *Certified as an Elder Law Attorney ( CELA ) by the National Elder Law Foundation as accredited by the Texas Board of Legal Specialization and the ABA. He is licensed to practice law in Texas and in Washington State, and handles San Antonio Probate and Bexar County Probate, Wills, Living Trusts, Estate Planning, and writes the legal column for the San Antonio Express News.

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