In conflict between Dad’s kids and his second wife, who gets the house?

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 property.

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.

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.

Paul Premack is a Certified Elder Law Attorney practicing estate planning and probate law in San Antonio.

Original Publication: San Antonio Express News, July 22, 2011

#HomesteadRights #PrenuptialAgreement #Property #SecondMarriage

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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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