Can adult children force sale of the homestead?

This column first appeared in the San Antonio Express News and other Texas Hearst newspapers on August 10, 2018.

gray house with fireplace surrounded by grass under white and gray cloudy sky

Dear Mr. Premack: My boyfriend was married, but his wife died 8 years ago. He still lives in the house they had together. She did not have a Will, but she did have three adult children from before they got married. Now her kids want him to sell the house so they can get the money from their mother’s half. My boyfriend has been paying the taxes every year. It is not very fair that her adult children, who have not paid the mortgage or the taxes, can do this. Texas law needs to be changed. – MMB

Just because those adult children are demanding that the house be sold does not mean that Texas law supports their demand. Laws are not always simple, and they do not always make everyone involved happy. But before anyone can enforce what they perceive to be a legal right, they need to be sure that they actually have that legal right.

Look at the facts of this situation. Woman has three adult children. She marries Man, who is not the father of those adult children. Woman and Man buy a house together, with a mortgage, and live there while married. They fail to take the responsible adult action of making Wills or other estate plans. Woman dies intestate, leaving Man and adult children in conflict.

Texas law of intestacy states that Woman’s community property half in the house passed to her adult children born before she married Man. But the county ownership records at the County Clerk’s office only show the home purchase by Woman and Man. If the adult children desire to assert their claim of ownership, they need to take legal action in probate court.

Adult children would need to file, at least, for a court Determination of Heirship. Their claim to heirship would be evaluated by an attorney appointed by the court, and ultimately by the Probate Judge. If the facts support their claim, the court would issue an Order decreeing they are Woman’s intestate heirs. That Order would be used to modify the county’s Real Property Records to establish they own a half undivided interest in the house.

What are the co-owners’ legal rights and obligations? The adult children have no legal right to demand the house be sold. Man, as surviving husband, has homestead occupancy rights under Texas law. If Man abandons the homestead (voluntarily moves to another location with no intention to return) then adult children can seek partition and sale of the property in court. If Man dies, adult children will have to work with his court-appointed Executor or Administrator on the sale of the property before they can get the money from their half.

Second, the co-owners need to understand that Man is obligated to pay the local property taxes on the house, and to keep it in good repair. He is also obligated to pay his half of the principal payment and all of the interest on the mortgage, but adult children are obligated to make Woman’s principal payment on the mortgage. They are also obligated to pay for one-half of the casualty insurance on the house. That obligation relates back to the date of Woman’s death, so they actually owe money to Man. When adult children understand their legal rights, the process they must pay for to establish those rights, the limits on those rights, and the obligations that come with those rights, they may not be as eager to sell the property.

Paul Premack is a Certified Elder Law Attorney with offices in San Antonio and Seattle, handling Wills and Trusts, Probate, and Business Entity issues. View past legal columns or submit free questions on legal issues via www.TexasEstateandProbate.com or www.Premack.com.

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