Probate Homestead - The Right of Occupancy by Hammerle Finley Law Firm


Your home is where your family resides. If it happens that your home is one on a piece of land that you or your spouse owns, then your home is considered your homestead.

There is a lot of Texas law about homesteads. The Texas Constitution, the Texas Property Code, and hundreds of cases define homestead rights.

That brings us to the subject of probate homesteads. For purposes of estate planning, you acquire an entirely new right to your home when your spouse dies. You are now the owner of the exclusive right to occupy the probate homestead. This right allows you to fend off other owners of the property.

You have this right regardless of whether you and your spouse owned the home as community property or separate property. This can lead to some interesting situations.

How Probate Homestead Works

Consider the following scenario. Dan owns a house. It is his separate property. Dan marries Debbie and, together, they move into Dan’s house and live in it. Dan dies.

Under the probate homestead laws Debbie, despite not having an ownership interest in the house, has an exclusive right to occupy the house as her probate homestead after Dan’s death.

Let’s go a bit further. Assume that Dan never got around to making out a new will after his marriage. Under his old will, he left everything to his adult children. That included, of course, ownership of the house.

So now, under Dan’s will, his adult children own the house. Does that affect Debbie’s probate homestead?

It does not. Debbie’s right to occupy the house trumps everything. Her step- children cannot take possession of the house, lease the house or live in the house.

Do You Need To Occupy The Probate Homestead?

In fact, Debbie does not even have to occupy the probate homestead to preserve her rights. She keeps the homestead right if she merely uses the house with the intent to occupy it as her homestead at a later date.

What if, after Dan’s death, Debbie gets married again and she and her new spouse occupy the probate homestead? That, too, does not adversely affect her homestead right.

Debbie’s right to occupy ceases when Debbie dies.

Pros and Cons of A Probated Homestead

The probate homestead right is, to put it mildly, very powerful. It comes with all of the general protections afforded a homestead. That means a creditor cannot force sale of the homestead to pay general debts of Dan’s estate.

In addition to the right to possess the homestead, Debbie has the right to income from the property. This usually comes into play for a rural homestead property that has an oil and gas lease. Debbie is entitled to receive and spend all oil and gas royalties from the property.

If the property is damaged by someone else, she also has a right to sue that person for the damages.

All is not wine and roses for Debbie, however. With all of these rights come some significant duties and obligations.

Debbie is responsible for upkeep and ordinary repairs on the property. If she makes any improvements to the property, like redoing the kitchen or putting in a screened porch, she is not entitled to reimbursement.

She also has to pay property taxes and interest on the mortgage. However, Debbie’s step-children (or any other owner of the property) must pay the mortgage principal payments and casualty insurance.

Get Legal Consultation For Probated Homesteads

Probate homestead rights are tricky. They can easily be lost or forfeited. A surviving spouse would be wise to timely seek legal advice as soon as possible.

Virginia Hammerle is an attorney with Hammerle Finley Law Firm whose practice includes probate law, estate planning and contested litigation.  To receive her newsletter contact her at