In Texas, if a decedent is survived by his or her spouse (or minor child), the surviving spouse is entitled to occupy the homestead as long as he or she chooses to occupy it. When the occupancy ceases, the right ceases. This right to occupy is independent of title; if the property has been devised to some other person, such person takes title subject to the spouse’s right of homestead occupancy. The property cannot be sold or partitioned out from under the person asserting the homestead, and the homestead right is not extinguished by remarriage.
Example: Wendy dies survived by Herb and by Steve, her son by a former marriage. The family residence, which qualifies as a homestead, is community property. Wendy’s will leaves her one-half interest in the residence to Steve. However, Steve takes his interest subject to Herb’s homestead right of exclusive occupancy as long as Herb chooses to use the property as his residence.
Here are some common questions that arise when a homestead right of occupancy is created:
If the surviving spouse does not occupy the homestead property, have homestead rights been abandoned? Probably not. It is very difficult to prove that a homestead has been abandoned. There are even cases where the surviving spouse has rented the property to others or lived in a different locale; yet, the courts have found that the homestead was not abandoned.
If something needs repair, who is responsible for the repairs? The surviving spouse will be responsible for making repairs and generally maintaining the property, but the duty to repair does not go so far as to require that the property be maintained in the same condition that existed when the homestead right was originally established.
What if the surviving spouse decides to remodel or otherwise improve the property, is he/she entitled to be reimbursed for those improvements? Generally there is no reimbursement to the surviving spouse for improvements they initiated.
If there is still an amount due on a note, who is responsible for the payment? The answer is two-fold. Typically, the surviving spouse will be responsible for paying the interest on existing mortgages, but the holder of the underlying interest will be responsible for making principal payments. Obviously, this is problematic from the start if one or the other fails to pay his/her portion. Note: if the property was community property, the surviving spouse will still be responsible for paying his or her half of any mortgage principal payments.
Who pays property taxes on the property? The surviving spouse will be responsible for paying property taxes.
If a part of the homestead property receives rents or royalty payments, who has a right to receive those payments? Normally, the surviving spouse will have the right to receive rents and royalties.
Who pays insurance premiums on the property? The holder of the underlying interest is responsible for paying insurance premiums on the property. Note: if the property was community property, the surviving spouse will still be responsible for paying his or her half of any insurance premium payments.
