Full question:
Primary residence rights of separate property
- Category: Wills and Estates
- Date:
- State: Texas
Answer:
In Texas, the surviving spouse and children have rights to the homestead, regardless of whether it is community or separate property. According to the Texas Estates Code, Section 102.002, the homestead rights of the surviving spouse and children remain the same whether the property was the decedent's separate property or community property.
The rights of the surviving spouse and children are further established by Section 353.051 of the Texas Estates Code. This section states that, unless an application and verified affidavit are filed, the court will set aside the homestead for the use of the decedent's surviving spouse and minor children after the estate's inventory and appraisement are approved. It also allows for other exempt property to be set aside for the benefit of the decedent's surviving spouse, minor children, unmarried adult children living with the family, and incapacitated adult children.
Before the inventory is approved, the surviving spouse or a person acting on behalf of the minor children can apply to the court to have exempt property, including the homestead, set aside. The applicant must provide a verified affidavit listing the exempt property claimed. At a hearing, the applicant must prove their case by a preponderance of the evidence.
This content is for informational purposes only and is not legal advice. Legal statutes mentioned reflect the law at the time the content was written and may no longer be current. Always verify the latest version of the law before relying on it.