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Texas - What rights do other heirs have when a spouse chooses to remain in a community property homestead?

Sherman, TX |

When children from a prior marraige inherit their parent's portion of a community property homestead and the spouse chooses to remain in the house, what rights do the other heirs have to insure continued maintenance of the property? Is the property retitled to include names of all heirs?

Attorney Answers 2


Generally speaking, the property should be retitled granting the children from the prior marriage a 1/2 undivided interest, however, the surviving spouse has the right to occupy and use the homestead for her life. If she chooses to use the property as her primary residence, she is responsible for maintaining the property and paying any property taxes or liabilities associated with it.

If the surviving spouse is failing to maintain the property, the other owners may have a cause of action against her for devaluation.

I suggest speaking to an attorney to fully flesh out the details of your case and get more specific advice.

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Although the heirs expect the widow to maintain the property as long as she is living in the home, the last time I had this issue in a case, I found no clear law requiring her to do so.

Arguments can be made both ways, but as a practical matter, if the widow does not have the finances to do so, or if she is just not willing to spend what she has on maintenance, the heirs' remainder estate may devalue over time.

Options to deal with this situation include meeting with the widow and offering to pay some or all of the needed maintenance in exchange for her agreement that the costs expended by the heirs will be paid back at closing of the sale of the property out of the widow's half of the net sales proceeds (assuming the home was community property at the death of her husband). This sale could occur because the widow decides to move elsewhere or because she dies. Since the sale may occur as a result of her death, you need to have an attorney draft the agreement and make it such that it will be a valid, recorded lien against the property.

If she refuses this arrangement, another option is to retain an attorney to file an action to seek mandatory injunction requiring the maintenance be performed by the widow on the theory that she is allowing the remainder to waste by her failure to mantain it. This is not necessarily an action the heirs will win depending on the facts, the claimed level of wasting occurring due to non-maintenance and the court's view on such matters.

As to title, if the will was probated in the county where the real estate is located, and assuming the heirs are identified adequately, it is already titled. To be sure, you can request a title company to tell you in whose name the property is shown to exist, which report should show that the widow has a life estate and the heirs (identified by name) have an undivided remainder interest.

You should consider hiring an attorney on this matter.

Good Luck.
Note: This response is: a) limited in scope to questions involving Texas law for a Texas resident; b) is intended only as a general information discussion of an issue raised in the question presented; c) does not constitute legal advice as all relevant facts are not known nor analyzed; and d) does not create an attorney-client relationship.

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