MY HUSBAND OWNED OUR HOUSE BEFORE WE WERE MARRIED. CAN HIS CHILDREN KICK ME OUT?

We live in a world of blended families – yours, mine, and ours. Even in families where everyone gets along, the death of a parent and spouse can cause more than grief. It can cause tremendous tension when it comes to handling the decedent’s estate.

If you’re dealing with the loss of a spouse and rifts with your stepchildren, you need experienced and knowledgeable legal advice. At Russell Manning Attorney at Law, I have been providing guidance to clients like you in Corpus Christi, South Texas, and The Coastal Bend area for more than 30 years.

Community Property vs.
Separate Property in Texas

Texas law distinguishes between community property and separate property in a marriage. Community property is typically property acquired by either or both spouses during the marriage.

Separate property includes what the spouses owned before the marriage. Separate property also includes gifts or inheritances given to one spouse during the marriage. For example, if a husband receives a $10,000 inheritance from a parent, that is his property and not community property. But if he deposits that money into a joint account shared by his spouse, it becomes community property. Likewise, if your spouse puts your name on the deed to the house, it is community property.

Inheritance With a Will or Trust

If your spouse died with a will or trust, the property will be distributed as directed. But as a surviving spouse, you are legally entitled to one-half of all community property. If your spouse’s will directs more than one-half of the community property to be distributed to others, you can exercise the “widow’s election” under Texas law to retain your one-half share, or you can honor the bequests as made in the will. You can’t do both.

For example, your spouse leaves some of your community property to other individuals but leaves you separate property you are not legally entitled to. You must decide whether to honor the distribution of the estate as specified in the will or retain your one-half share of the community property.

Inheritance Without a Will or Trust

When someone dies without a will in Texas, the law of intestate succession dictates how the property is distributed.

Separate Property is distributed as follows:

  • If there is a spouse and no children, the spouse inherits all separate property.
  • If there is a spouse and children, the spouse inherits one-third of the separate property and the children share two-thirds.

Community Property is distributed as follows:

  • If there is a spouse and no children, the spouse inherits all community property.
  • If there is a spouse and children of the marriage, the spouse inherits all community property.
  • If there is a spouse and children of the decedent from a prior relationship, the children and the surviving spouse each receive one-half of the community property.

What About the House?

If your spouse owned your home prior to your marriage and never added your name to the deed, it is separate property belonging to your spouse. That said, the Texas Constitution provides a life estate in the homestead for the surviving spouse, which means the surviving spouse has the right to continue living in the house and maintaining it until their death. Your late husband’s kids cannot evict you from your home.

If you choose to leave the home, the heirs can sell it; however, there are provisions for an allowance for the surviving spouse. Each case is unique, so you need to consult a knowledgeable estate attorney who can counsel you regarding your options.

How Attorney Russell
Manning Can Help

Estates are complicated. Texas law attempts to protect surviving spouses, children of the marriage, children from previous marriages, and the wishes of the deceased in the distribution of an estate. You need to understand fully your rights regarding community and marital property, with or without a will, when your spouse dies.

If you want to discuss your rights regarding a spouse’s estate, call my office today to schedule a consultation. At Russell Manning Attorney at Law, I have worked with clients on their estate plans and with those who survive their spouses and need to understand what they are and are not entitled to. I proudly serve clients in Corpus Christi, South Texas, The Coastal Bend area, and Bee, Kleberg, Nueces, Live Oak, Jim Wells, Aransas, and Victoria counties.


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