For many Forney families, the family home is one of their most important assets and sources of wealth. Individuals and couples may wish to pass on their home to children and loved ones after their death. But what will happen to your family’s home after you pass away? In particular, what happens to the home if you pass away before your spouse? The disposition of your family home can depend on how Texas homestead rights apply and on the provisions you include in your estate plan.
What Are Homestead Rights?
Under Texas Property Code § 41.002, a “homestead” refers to an urban home for a family or single adult or a place of business sitting on no more than ten acres of land, or a rural home sitting on no more than 100 acres if occupied by a single adult or 200 acres if occupied by a family. Sections 50 through 52 in Article 16 of the Texas Constitution establish homestead rights in the state. These rights include:
- Protection from forced sale to pay debts, except for a mortgage or loan secured by the home, property taxes, or court-ordered partition
- Protection from a partition among heirs upon the death of a spouse with a surviving spouse residing in the home, or upon the owner’s death with the guardian of their children residing in the home
The Surviving Spouse’s Right to Stay in the Home
The Texas Constitution gives a surviving spouse who lives in a qualifying home as their homestead the right to continue residing in that home for the rest of their life, as the Constitution bars partition of the home among the heirs or beneficiaries entitled to inherit the home under the owner’s will or Texas intestate succession laws. This right applies even if the deceased spouse owned the home as separate property, as long as the surviving spouse lives in the home and wants to continue using it as their homestead. However, this right ends if a surviving spouse abandons the home as their homestead or takes up a new property as their homestead.
Occupancy vs. Ownership: Who Actually Owns the Home?
Under homestead rights, occupancy and ownership can pass to different parties after the death of a property’s owner. The owner’s spouse has the right to continue occupying the property as their homestead. However, title to the home, which signifies ownership, will pass to heirs and beneficiaries under the owner’s estate plan and applicable Texas community property and intestate succession laws. A surviving spouse may inherit ownership of the home under their spouse’s will or state community property laws. Alternatively, the deceased spouse’s children may inherit ownership or may share ownership with a surviving spouse.
Limits and Responsibilities for a Surviving Spouse
A surviving spouse who continues residing in their deceased spouse’s home under homestead rights typically must maintain the home for the heirs or beneficiaries who inherit ownership.
However, the surviving spouse who occupies the homestead usually cannot encumber the property with a mortgage or debts or sell the property. Furthermore, the home remains protected from a sale to satisfy the deceased spouse’s outstanding estate debts (except for debts related to mortgages, property taxes, or outstanding balances on home improvement contracts)
Contact Our Firm Today
If you have questions about what may happen to your home after your passing, an experienced estate planning attorney can walk you through the effects of Texas homestead rights and trusts and estates law. Contact Guest & Gray today for a free consultation with a Forney estate planning lawyer to learn how Texas law affects your home’s ownership and occupancy rights after your passing.
