Sandra Reed: Honoring the rights of surviving spouse and minor children

By Sandra W. Reed

Attorney Sandra W. Reed answers your life planning questions.

Attorney Sandra W. Reed answers your life planning questions.

The rights of the surviving spouse can be trampled when the other spouse dies, making it imperative that couples understand what those rights are and plan their estates to protect them. Most problems arise when the decedent had no will or a will that did not leave all property to the surviving spouse. The executor, if there is a will and the administrator, if there is not, is charged with protecting those rights with respect to the estate property.

For example, let’s say Dan married Mary, his high school sweetheart, and they had two children, Dan Jr. and Mary Glen. Mary died when the children were young adults in their 20s. Nine months after Mary died, Dan met Cindy on and they married after dating for three months. Cindy, 15 years younger and never previously married, wanted a child of her own. She and Dan had a baby, Billy, a year-and-a-half later when Cindy was 31. Shortly after Billy’s third birthday, Dan had a heart attack and died.

When they married, Cindy moved in with Dan, who had continued to live in the home where he and Mary had raised their children. When Dan died, he left the house to Dan Jr. and Mary Glen in his will. Dan Jr. and Mary Glen were aware that, by law, since their father had owned the house before he and Cindy married, it was his separate property under the “inception of title doctrine.” They were under the false impression that, because the home was Dan’s separate property and he had left it to them, they were entitled to evict their step-mother.

Homestead Right in Surviving Spouse and Minor Children

The truth is that, even though Dad willed the separate property home to his children, Cindy has the right to occupy the property for the rest of her life if she so chooses. Dan Jr. and Mary Glen cannot partition the property among themselves until after Cindy dies, sells her interest in the property or no longer elects it as her homestead.

Adult children like Dan Jr. and Mary Glen would benefit from selling the family home at once so they can immediately take their portion of the proceeds. This creates an incentive to force the surviving spouse from the home. However, Texas law protects the surviving spouse and any minor children from that quick sale by providing a “homestead right” so they can continue living in the couple’s residence after one partner as long as they maintain the property as their homestead. The estate’s representative has the duty to prevent ouster of a surviving spouse or minor child.

Dan’s will named Cindy as his executor to administer the estate. She hired an attorney experienced in probate who will represent her in court. As executor, Cindy is required to file either an “inventory, appraisement and list of claims” for the estate or an affidavit stating these have been prepared. The probate court must set aside the homestead for the benefit of Cindy and Billy, as the surviving spouse and minor children after this filing. Texas Estates Code §353.051.

Rights and Obligations of Surviving Spouse and Children with Intestacy

Rights and Obligations with Separate Real Property
If Dan had had no will, the laws of intestacy would have determined who would be entitled to his property, including the home. Cindy would have the homestead right described above. She would be entitled to a life estate in one-third of all Dan’s separate real property. (Texas Estates Code §201.002.) This life estate is a separate right from the occupancy right and has a monetary value calculated from the property’s value and the surviving spouse’s life expectancy. Dan’s children, Dan Jr., Mary Glen and Billy, would own the remaining interest in this one-third and would own outright the other two-thirds of his real estate.

In this instance, Billy’s interest in the property will have to be held in a trust or custodial account him until he reaches 18 since a minor cannot own property.

Rights and Obligations in Community Real Property
If Dan had sold his and Mary’s home and he and Cindy had purchased a new home after they married, Dan and Cindy’s new homestead would be characterized as community property, since the inception of their title to it occurred after their marriage.

Because Dan has children who are not also Cindy’s children, with no will, Dan Jr., Mary Glen and Billy would acquire Dan’s one-half community interest in the homestead. Cindy would retain her one-half interest in the community property. (Texas Estates Code §201.003.) This reaches the same result with community property as Dan’s leaving his one-half to the children in a will.
Cindy and Billy, as a minor, have the homestead right because the law provides that this right is not affected whether the property is community property or separate property. (Texas Estate Code §102.002.)

But, under this scenario, three adults (Dan Jr., Mary Glen and Cindy) would own the property as tenants in common with a minor child, Billy. As noted above, Billy’s interest will have to be held in a trust. This creates a dilemma for Dan Jr. and Mary Glen because they own an interest in real estate from which they can obtain no immediate benefit, unless they want to sell their interest to Cindy and she wants to — and has the ability to — buy that interest.

Conclusion: Plan Ahead
Understanding the rights of the surviving spouse and minor children is important in creating an estate plan that meets the particular needs of the family. So plan ahead. To assure these rights are understood and honored, without negatively affecting other family members, consult an elder law or other attorney knowledgeable in estate planning and probate.

Sandra W. Reed is an attorney practicing in Glen Rose, of counsel with the Fort Worth elder law firm of Katten & Benson. Phone: 254-797-0211; email:

Leave a Reply

Your email address will not be published. Required fields are marked *

You may use these HTML tags and attributes: <a href="" title=""> <abbr title=""> <acronym title=""> <b> <blockquote cite=""> <cite> <code> <del datetime=""> <em> <i> <q cite=""> <strike> <strong>