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Can Second Spouse Remain in Homestead?

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

Dear Mr. Premack: I have some questions about my husband’s rights after the death of his father. His mother and father owned a home in San Antonio, and she died in 1999. They had a Revocable Living Trust Agreement prepared by an attorney leaving everything to the surviving spouse, then upon the second death leaving everything to my husband and his sister. However, his father married a second time, living with his second wife in the house for 15 years until he died. Now, second wife wishes to remain in the house. My husband’s attorney said that if both siblings agree they can force second wife to leave the residence, but has backtracked and now says it may not be possible to force her to vacate the property. Some of my reading indicates that since the property was his dad’s before they married, she has no claim while some indicates that she can stay either until her death or until she chooses to vacate the property. Do we even have a chance of getting her out of the house? If you can shed any light on the issue I would appreciate it. – C.A.

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 He could have withdrawn the property from the Trust, vesting title back into his own name, and then could have signed a deed converting the house into community property.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


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