Homestead rights, heirship and things to know about how property passes upon death in Texas

This column first appeared in the San Antonio Express News on January 25, 2016.

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Proper planning can help preserve assets that would otherwise scatter in the wind

Dear Mr. Premack: My husband and I married 10 years ago after both becoming widowed with grown children.  He sold his house and moved into mine (bought with my late husband).  I understand if I die first, he will have the right to live there the rest of his life.  I am okay with that. But what if he remarries after I die, as I expect he would?  Does his new – third – wife then retain homestead rights in my house after his death? MTT

Homestead occupancy rights for a surviving spouse are granted in Article 16, Section 52 of the Texas Constitution. It says that title the homestead must pass just like any other real property, but may not be partitioned (that is, divided among the heirs or sold) during the lifetime of the surviving spouse (or until the spouse elects to relocate). These rights are granted exclusively to the surviving spouse, and do not compound to the next spouse in line. So the answer to you is “no, his new, third, wife will not have rights in your house after his death”.

His rights are based on his marriage to you. His rights expire on his death or when he elects to move. As such, he cannot extend those rights to anyone else, like a third wife. Your home will pass according to your properly probated Will, unburdened by further homestead rights.

Dear Mr. Premack: My mom died in Oct 2015.  She did not leave a Will.  I am the only child and my father died back in 1974.  I have filed Affidavits of Heirship and a Small Estate Affidavit. They had no other children. the house in Bexar county is in my mom’s name and I don’t know how to change that. I have looked all over the internet and can’t find what I need to do. SH

When your father died in 1974 one of two things happened: 1) he died testate, his will was probated, and it left his interest in the house to your mother, or 2) he died intestate, and under then-existing state law his half of the house passed to you as the only child.

When your mother died in 2015, she was intestate. If she owned 100% or owned 50% of the house, her interest passed to you as the only child. Whether you already owned 50% from your father is a technicality. After she died, the law says you own 100% of the house.

The question, then, is how to apply the law to your specific situation. You state that you have filed Affidavits of Heirship and a Small Estate Affidavit. The first is a non-judicial statement of family facts and the law, leading to the conclusion that you own the house. It would be on file in the county clerk’s real property records. The second is a judicial determination that you are the sole heir and own the house. It would be on record in the county clerk’s probate records, and you can file a certified copy in the real estate records.

Those documents establish your legal ownership of the house. Either one would have sufficed, but for some reason you did both. If you need to prove your ownership of the house, refer to either the Affidavit of Heirship or to the Small Estate Affidavit (the latter being better, since it has been approved by a Judge).

Dear Mr. Premack: My husband and I have been separated for many years, not legally. We took out life insurance policies back in 1998 I have recently found he changed his beneficiary. Can he legally do that without my authorization?  DB

Texas does not have legal separation; though you do not live together, you are still married unless you get a divorce. The assets which you acquire during marriage – including the life insurance policies – are community property. The policies themselves are contracts with the insurance company, and under the contract your husband (if he owns his policy) may change the beneficiary. But the contract cannot divest you of your ownership rights. Hence, even if he changes the beneficiary, you are entitled to ½ of the death benefit because you already own that half.

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