Many Legal Factors Influence Spousal Ownership and Occupancy of Homestead

Dear Mr. Premack: Our home is in my husband’s name. If he dies and the home is still in his name only, will I be the person to receive ownership of the home? He has no children – PL

When you say that the home is in your husband’s name, it brings up a lot of possible legal issues. First, he may have owned the home before the two of you got married, which would make it his separate property. Second, he may have purchased the home during your marriage but, with your agreement, had the deed put into his name only. If so, it is community property even though your name is not on the deed.

Third, the two of you may have purchased the home together, and later on you may have agreed to transfer it into his name only. A proper written agreement between the spouses can modify the ownership, status and rights in the home.

Your husband definitely has some type of ownership of the house, and you want to know if you become owner upon his death. No matter what the extent of his rights, he has the power to give them to you by making a valid Texas last will and testament. If he wants you to receive his interest in the house, he can make it so.

But perhaps he refuses to make a Will. If so, the nature of the house as community property or as separate property makes a big difference. Community property becomes your property (when he has no descendants from a prior marriage). Separate property is split so that you get one-half of his interest in the house, and his parents or siblings are in line to receive the other half of his interest (when he has no descendants).

Regardless of who becomes owner, you have the legal right to occupy the home after his death. Someone else might become partial owner, but they cannot interfere with your occupancy of the house. Still, you and the other owner have the complex issue of deciding how to share paying the taxes, insurance and maintenance of the house while you live there.

The only exception to your right to occupy the house would be if you and your husband have signed a written agreement in which you waived your occupancy right. If so and if the home is his separate property, he could even choose to make a Will leaving the home to someone else. Then after his death and probate of his Will, you would be legally required to vacate the home and find other accommodations.

If you want to know exactly what might happen to you, under the facts of your situation, you should have a private consultation with an attorney experienced in family law, real estate law or estate planning.

Paul Premack is a Certified Elder Law Attorney and a Five Star Wealth Manager (Texas Monthly Magazine 2009-2013) practicing estate planning and probate law in San Antonio.

Original Publication: San Antonio Express News, July 2, 2010

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