Byron R. Berry

Here are the facts of the situation.  Husband and wife are each on their second marriage and they purchase a home together. Husband dies and leaves a will leaving everything to his grown kids – who by the way don’t like his second wife. The second wife is very nervous about her situation and has a few questions.

1. Can she be forced to sell the home?

No.  The Texas Estate Code provides that the homestead may not be partitioned during the lifetime of the surviving spouse, so long as she elects to use or occupy the property as a homestead. This means the heirs can’t force the home to be divided or sold.

2. Is she responsible for the upkeep of the property?

She is responsible for general maintenance, but not to the extent she has to keep the value of the property the same as it was at the time her husband died.

3. Does she have to keep it insured?

She doesn’t have to but it is not a bad idea.  Since insurance is contractual in nature, if the house burned down she could take the proceeds (which the heirs would have no right to) and either rebuild or go buy a new house. The heirs should insure the place to protect their inheritance.

4. What about the mortgage?

That’s kind of sticky.  If she doesn’t pay the mortgage, the lending company can foreclose. Technically, the heirs are on the hook for at least half of the principle payments.  It boils down to who has the most to loose? Normally the heirs look at this as they are paying down the principle, even though it means stepmom gets a free ride.

5. What about the property taxes?

If taxes aren’t escrowed (maybe the home is paid for) someone has to pay them. They don’t just go away. The home could be foreclosed on, however if she is over 65, she can defer taxes until her death under the tax code.  This means that the heirs will be responsible for taxes and interest at that time. So again, if the heirs want to protect their interest, they need to pay the taxes.

6. Since the heirs own half of the property, can they come on the property whenever they want?

No. The case law on this is pretty clear that while the surviving spouse maintains the residence as her homestead, she has the exclusive right of use and possession and the heirs interest is subject to her rights.

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