Survivors Rights

In the overwhelming circumstance of losing a spouse, many questions arise as to what needs to be done, what probate procedures are necessary, and perhaps most immediately, how the decedent’s survivors will be able to maintain their lives in the absence of the deceased. If you find yourself as the survivor of a deceased spouse, it is important to know your property rights under Texas law.

Very often, the most significant consideration in this circumstance is the surviving spouse’s right to the homestead. Texas provides one of the most, if not the most, generous homestead laws in the nation. Our laws provide that, as long as the survivor elects to live in the house and use it as his or her homestead, that home will remain in his or her possession through his or her lifetime. Texas gives exclusive use and occupancy of the homestead to the surviving spouse, even against all other heirs and most creditors. This means that the homestead will not pass under the laws of descent and distribution, nor is it subject to administration, in the decedent’s estate. Whether the home was separate or community property under family law standards is irrelevant.

A “rural homestead” is allotted at 200 acres, and an “urban homestead” is limited to 10 acres. As a general matter, the home set aside for the survivor will only be liable for debts such as those for purchase money of the homestead; taxes due on the property; material & labor liens on home; certain partition agreements and orders; and reverse mortgages. The court will generally allocate the homestead to the surviving spouse as soon as the inventory, appraisement and list of claims has been approved in probate.
Issues will often arise as to what constitutes the homestead, what constitutes abandoning the homestead, and what should happen if the homestead exceeds the applicable acre allotment. Valuation issues, mineral rights, and other ancillary issues may also need to be handled. For questions on Texas’ homestead laws as they apply to your particular situation, please call the Houston probate attorneys at Garg & Associates.

Another key consideration is the surviving family’s right to the decedent’s personal property. Like the homestead allowance, Texas law provides the survivor what is called an ‘exempt personal property set-aside,’ meaning that when a decedent passes away, a certain amount of personal property (such as furniture, clothing, jewelry, vehicles, and so on) should be set aside for the benefit of the decedent’s surviving spouse. This “set-aside,” like the homestead law, is a very beneficial aspect of Texas probate, in that this certain amount of personal property will be exempt from most creditor’s claims and forced sale.

The Texas Property Code outlines the specific parameters regarding what property may be set aside. The exempt property may include: home furnishings; provisions for consumption; farming and ranching equipment; tools and vehicles used in a trade or profession; clothing; jewelry; two firearms; athletic and sporting equipment; a motor vehicle for each member of the family with a driver’s license; two horses, mules or donkeys and a saddle, blanket and bridle for each; 12 head of cattle; 60 head of other livestock; 120 fowl; and household pets. The aggregate value of the property cannot exceed $60,000 for a family, or $30,000 for a single adult.

Although the set-aside will be protected from most creditors, it is important to note that it will not be exempt from all claims. For example, the property may be reached for the payment of Class 1 claims of the decedent, for the payment of debts secured by liens against the property, or for the payment of federal tax liens.
Certain provisions apply to the set-aside depending on whether the decedent’s estate is solvent, and depending on whether all children of the decedent were born to both the decedent and the surviving spouse (i.e., whether step-children are involved). There also exists the possibility of obtaining what is called an ‘allowance in lieu of exempt property’ if the circumstances permit.

Again, if you have questions about the homestead laws, the exempt personal property set-aside, or other aspects of Texas probate, we invite you to call the Houston Probate attorneys at Garg & Associates.

We invite you to contact us for a consultation. Call Garg & Associates, PC at 281-362-2865 or complete our contact form.

firm info  |  practice areas  |  articles  |  faqs  |  blog  |  contact us  |  Site Map  |  resources  |   Find us on Google+   |   Log in

Garg & Associates, PC | 21 Waterway Avenue, Suite 300 | The Woodlands, Texas 77380 Please call 281-362-2865 | Fax: 866-743-4506
Serving The Woodlands, Spring, Houston, Conroe, Kingwood, Tomball, Cypress, Huntsville, Cleveland, Stafford, Montgomery County, Harris County, West Oaks, Memorial, Sugar
Land, River Oaks, Alief, Stafford, Missouri City, and Southwest Houston Texas.