Texas is a community property state. This means that all property amassed during the marriage is equally owned by each spouse, subject to certain exceptions. However, what happens when there is an agreement in place that divides up the marital property unevenly, or when all property owned at the time of passing was separate property held by only one spouse? Does the surviving spouse have any rights to the property or are they to be left with nothing?
While it is important to know the courts and Texas legislature have provided some safety measures to protect surviving spouses in situations such as these. You must also be aware that a valid pre marital or post marital agreement can change your property rights preventing these safety measures from applying.
Safety measure #1: the Probate Homestead
The couple’s primary residence, if owned, is classified as their “homestead” and the surviving spouse may qualify for a Probate Homestead upon the passing of their spouse. In that case, the surviving spouse may live in the residence until his or her passing. This is true even if it was the separate property of the spouse. This is true even if the residence was left to another person in the spouse’s will. In effect, the surviving spouse has the right to live in the homestead until they pass and then the right of possession shifts to whoever has legal title to the home. The surviving spouse will have certain financial responsibilities if they wish to remain. Additionally, the residence must meet certain statutory guidelines to qualify as a homestead, and there are ways that this privilege can be lost, so it is best to consult an attorney when faced with this situation.
Safety measure #2: Set-aside of Exempt Personal Property
Texas law allows you to set-aside a certain amount of personal property that will be exempt from creditors’ claims. The amount varies depending on whether the surviving spouse is single or has a family and is changed from time to time by the legislature. The statute also gives a detailed list of items that will qualify as personal property that can be set-aside – it does NOT apply to everything.
In the event that the spouse who has passed did not own all of the personal property items that the surviving spouse is entitled to in the set-aside, you can receive an “allowance in lieu of homestead or exempt property.” The allowance amount is less than the actual amount of the probate homestead and/or the set-aside of exempt personal property, but it is meant to ensure that the surviving spouse of even the smallest estate does not walk away with no ability to provide for their future.
Safety measure #3: Family Allowance
Finally, Texas law provides for a family allowance for the surviving spouse and minor children. This allowance is meant to be an amount sufficient for their support and maintenance for one year. The allowance is notwithstanding any other gifts or property inherited by will or through intestacy. There are many factors that are taken into account when calculating the family allowance; therefore it is generally best to consult an attorney with experience in this area.
The probate homestead, set-aside of exempt personal property and family allowance, are measures the Texas legislature put in place to prevent a surviving spouse, and minor children, from being left without any means of support upon the passing of their spouse or parent. These safety nets can help, but nothing is better than a well-executed estate plan that provides for your loved ones needs after your passing.
Law Offices of Debbie J. Cunningham
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