Written by attorney Stephen A. Mendel

Texas Homestead Exemption Laws

As you may already know, Texas has one of the strongest homestead exemption laws in the country. The Lone Star state’s homestead laws also include probate homestead exemptions. More specifically, surviving Texas spouse has an automatic legal right to use her deceased spouse’s homestead after his death. The probate homestead exemption does not distinguish between separate and community property. Thus, a surviving spouse has a legal right to use her deceased husband’s separate residence as her homestead. For example, if her husband purchased a home before the couple married, his house is separate property and not subject to division if they become divorced. However, if they did not divorce, at his death, his wife could use his separate property as her own residence.

Texas’ homestead rights are codified in the Texas Probate Code. As long as the surviving spouse occupies and actually uses the deceased spouse’s home as her residence, creditors and heirs cannot force her to forgo her homestead rights. After the surviving spouse passes away, the decedent’s heirs inherit his property. Because the surviving spouse has a life estate, when she dies, the remaining heirs inherit the decedent’s property as remaindermen. Thus, if the decedent borrowed money or mortgaged his house, the life tenant and remaindermen are responsible for paying the debt. If the homestead needs repairs, the life tenant or surviving spouse is responsible for maintaining the homestead property and making any necessary repairs.

There are numerous published opinions handed down from Texas courts interpreting the state’s probate homestead exemption laws. While the decisions might vary somewhat, the courts have uniformly recognized the validity of a surviving spouse’s right to use a separate property homestead for the remainder of her life, subject to certain exceptions.

If you have questions about a probate homestead or estate planning to avoid probate, then please call for an initial one-hour consultation, which is at no-charge. We at the Mendel Law Firm can help you uncover your options and choose the strategy that is best for you.

Additional resources provided by the author

The Mendel Law Firm, L.P. 1155 Dairy Ashford, Suite 104 Houston, TX 77079 O: 281-759-3213 F: 281-759-3214 Email: [email protected]

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