What happens to Separate Property House?

This column first appeared in the San Antonio Express News and other Hearst Newspapers on July 22, 2019.

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Dear Mr. Premack: My mother was in her second marriage and owned her own house where they lived together. She died in San Antonio without a Will. The deed to her house was in her name only. Now my stepfather wants the house to be put in my name. What needs to happen? Thank you, SR

Since your mother was in a second marriage and the house title was in her name only, it is likely that she owned this house prior to getting remarried. If that is so, then the house is her separate property. Her second husband has no ownership right in the house but does have a marital homestead occupancy right granted by Texas law.

As the home’s owner, your mother had the option to arrange for title to pass to anyone of her selection. But she needed to actually express her selection in a legally enforceable manner. The most traditional way is to make a Will declaring who will inherit. She did not make a Will, so we have to look for other legal possibilities.

For instance, your mother could have signed a Transfer on Death Deed or a Lady Bird Deed transferring title to her home upon her death. Or she could have established a Living Trust then transferred title into the Trust to be distributed without probate upon her death. If she and her attorney used any of those legal planning tools, they must be followed. If not, she simply died without a personal plan.

Texas law steps in whenever anyone dies without a personal plan, imposing a state-preferred plan on the survivors. There are laws for the wide variety of situations that can occur; the law that applies to your mother is “married, has separate property real estate, has children from a prior marriage.” The law says that all of her separate property personal effects and funds go ⅓ to her husband and 2/3 to her children, while her separate property real estate goes in a ⅓ life estate to her husband with the remainder to her children.

Additionally, her husband has the right to live in the house for the rest of his life (or until he voluntarily leaves) without interference from her children. He must pay certain expenses, but so must her children – even if they get no benefit until the husband dies.

In your situation, her husband wants to put the house in your name. Let’s assume that you are your mother’s only child. If not, then he can give you his interest in the house, but he cannot give you the interest inherited by your siblings. To give you his interest, there must first be a legal proceeding to match the facts with the law; you may know who’s who in your family, but strangers do not know those facts. Hence, there are two possible legal routes you follow with an experienced probate lawyer 1) ask the Probate Court for a Determination of Heirship, or 2) prepare an Affidavit of Heirship. Read more about both of those processes in past columns in our archives.

After ownership is legally determined, your stepfather has the option to transfer his interest in the house into your name. He will need a lawyer to prepare the appropriate documentation. Just remember one key legal point: even if you own the home 100%, he still has the right to live there for the rest of his life. He can waive that right, so be sure to be clear on his intentions and be sure he signs the correct legal documents. You should both be represented by attorneys to be sure that you both understand your rights, understand what is being transferred, and understand any obligations that may continue after the transfer is completed.

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