Surviving spouse has unqualified right to retain homestead

Sandra W. Reed
Sandra Reed

Shortly before he died, Donnie Trapp wrote a holographic will leaving the home he and his current wife, Melanie, were living in to Donna, his favorite daughter by a previous marriage. Donnie had purchased the home before he and Melanie married. In the will, Donnie left everything else in his sizeable estate to Melanie. After Donnie died, Donna insisted that Melanie vacate the home immediately. Does Melanie have to move and find another home?

Homestead Rights Misunderstood or Overlooked in Estate Planning

Many don’t understand that homestead rights are not limited to the reduction in property taxes but that these rights impact the decedent’s estate. Furthermore, they often don’t even know what property a homestead includes. In Texas the urban homestead for a family or an individual consists of not more than 10 acres in one or more contiguous lots, along with its improvements. The rural homestead consists with improvements of 200 acres for a family or 100 acres for a single individual. 

Homestead Rights of a Spouse

Unfortunately, Donnie was one of those who failed to plan for the effects homestead rights would have on his estate plan. Donna could not force her stepmother out of the house after her father died, even though his will left the property to her. The law in Texas has been clear since established in Eubank & Co. v. Landrum, 59 Tex. 247, a case decided in 1883, that the surviving spouse retains an unqualified homestead right to occupy against any heir or creditor. Melanie, as the surviving spouse, had that right. The fact that Donnie had purchased the property before he and Melanie married did not matter because her homestead rights existed whether the property involved was community or separate property.

During her lifetime, Melanie was entitled to live in the home. Additionally, because there was land attached to the property which was leased out for cattle grazing, she was allowed to retain that income as well. Melanie was responsible for the upkeep of the property and for paying property taxes on it. Donna could take possession only after Melanie died.

Children Have No Homestead Rights Against Surviving Spouse

Donna could not claim a homestead right as Donnie’s child. As early as the court of appeals decision, Salmons v Thomas, 62 S.W. 102 (Tex. Civ. App. 1901, no writ), Texas law has held that children are not generally permitted a homestead right where the decedent has a surviving spouse. 

Under statutory law in Texas Estates Code, §102.006, even a minor child, orphaned because both parents have died, obtains a homestead right only through a guardian subject to the court’s discretion.  Therefore, if Donna had been a minor and an orphan whose guardian was her Aunt Sissy, Melanie’s homestead right would have remained intact.

Incorporate Effect of Homestead Rights Into Estate Plan

Had Donnie taken into account the homestead rights of his spouse, he could have written a will that benefited Donna, as he intended. Donnie owned other property not subject to homestead rights, which he could have given to Donna outright, free of any claims by Melanie. Even if Donnie hadn’t had real estate to give her, he could have given other property to her of a similar value. Donnie was the victim of the “penny wise and pound foolish” syndrome. He thought he knew what he wanted to do and that writing a holographic will without the benefit of legal advice would save money. Unfortunately, Donna paid the price for his penury.

Sandra W. Reed is an attorney with Katten & Benson, an Elder Law firm in Fort Worth. She lives and practices in beautiful Somervell County, near Chalk Mountain.