Are you married and residing with your spouse in the Great State of Texas?
Then we will launch right into a discussion of what happens legally when your spouse dies.
What to Expect Legally When a Spouse Dies
- Your marriage terminates.
- Your community property ceases to exist because only spouses can own community property.
- Death works a division of the community property assets. You retain your half of the community assets. Your spouse’s half interest in the community assets passes to your spouse’s heirs or devisees. Note that it may not be you.
- Your spouse’s separate property becomes part of your spouse’s estate.
- Your mutual obligation to support each other ends.
- You do not have a legal duty to bury your deceased spouse.
- Your spouse’s community interest in your state employee’s retirement plan, if you have one, terminates.
- You remain personally liable for your debts.
- Your spouse’s estate is liable for your spouse’s debts, although a creditor must jump through some hoops to recover the debt. Those debts are considered a statutory lien on your spouse’s estate.
- You need to divide your spouse’s assets into two categories: probate and non-probate.
The Difference Between Probate and Non-Probate Assets
Non-Probate Assets
An asset is non-probate if your spouse entered into–please forgive the Latin–an inter vivos transaction. That means your spouse either made a contract, gifted a future interest, executed a document such as a Transfer on Death Deed, or gave a survivorship right in co-owned assets that transferred ownership at death.
A small side note – if your spouse transferred a community asset that ostensibly included your interest, then you may be looking at fraud in the community lawsuit.
Probate Assets
An asset is a probate asset if it is not subject to an inter vivos or non-probate agreement. A probate asset passes at your spouse’s death to your spouse’s heirs or devisees. Your spouse’s probate assets make up your spouse’s probate estate. Those assets pass subject to your deceased spouse’s debt.
Sound complicated? That’s because it is, but let’s continue anyway.
Rights of the Surviving Spouse
You have certain additional rights as a surviving spouse. These are provided by either the Texas Constitution or by statute.
Homestead Right
You have a homestead right. Even if your spouse owned your home as a separate property and left it to someone else, you have an exclusive right to occupy the homestead as long as you elect to occupy it as your home.
You have a duty, while you are exercising your homestead right, not to commit waste and to pay utilities, property taxes, mortgage interest, and ordinary maintenance and repairs.
If there is not a homestead, then you have the right to an allowance from your spouse’s estate in lieu of a homestead.
Right to a Family Allowance
You have a right to a family allowance for one year’s maintenance, provided you do not have sufficient separate estate. The amount of the allowance is set by the probate court.
Another small side note – if you and your spouse had a marital or premarital agreement, then you may have waived those rights.
Rights Without a Probate
What if a probate estate is not opened for your deceased spouse? You still have the authority, as a surviving spouse, to take some interesting actions regarding the community property. You can sue to recover it, sell or otherwise dispose of it to pay debts out of the community estate, and collect claims owing to the community estate. And you can get paid a commission for your troubles.
Prepare for Life Changes With Hammerle Finley Law Firm
What you cannot do when your spouse dies is close your eyes and hope that everything will turn out fine. It won’t.
Establish an estate plan with the help of our expert attorneys. Schedule a consultation today.
Virginia Hammerle is an accredited estate planner and represents clients in estate planning, probate, guardianship, and contested litigation. She may be reached at legaltalktexas@hammerle.com. This blog contains general information only and does not constitute legal advice.
