Tom S. has two daughters by a previous marriage. He has executed a will which leaves the bulk of his property to them when he dies. Prior to his present marriage, Tom owned the house he and his current wife, June, occupy now.  June is about fifteen years younger than Tom and he anticipates she will remarry after he is gone. He read on the internet that his wife has homestead rights after he dies, but he isn’t sure what that entails. He is fine with her living in the house after his demise, but he doesn’t relish her new husband living there if she remarries. It makes his blood boil to think June’s new husband might be able to live in his house after June dies.

Tom also wonders what would happen if June tried to sell the homestead.

Homestead rights for the surviving spouse are contained in Article 16, section 52 of the Texas Constitution. The constitution provides the surviving spouse with the right to live in the house for the remainder of his or her lifetime. This is true whether the homestead is community property of the spouses or the separate property of the deceased spouse. The homestead property cannot be divided while the surviving spouse remains alive and living on the property. The homestead right of the surviving spouse to continue to live on the property remains in place, even if the surviving spouse remarries. June will be able to live with her new husband throughout her lifetime in the house that is Tom’s separate property. Tom needs to adjust to this fact regardless of how unpleasant it may be to him.

The homestead rights of the surviving spouse are exclusive to that surviving spouse. They do not pass to a new spouse in line. If June dies before her new husband (assuming she has one), he will not succeed to her rights in the house. Immediately upon June’s death, the homestead which Tom owned as his separate property will pass according to his will to his two daughters by the previous marriage. The new husband will have to vacate the house at that time.

Tom can rest easy about his concern that June might try to sell the homestead property he is leaving to his daughters. June’s homestead right of occupancy does not include the right to sell it. Should she attempt to do so, his daughters could sue to block the sale. According to some case law the daughters should be successful in their suit to halt the sale.

Sandra W. Reed is an attorney with Katten & Benson, an Elder Law firm in Fort Worth. She lives in beautiful Somervell County, near Chalk Mountain. She may be contacted by phone at 254.797.0211 or by email at swreed2@yahoo.com.