What are Primary Residence or Homestead rights of separate property in Texas?

Full Question:

Primary residence rights of separate property
05/14/2017   |   Category: Wills and Estates   |   State: Texas   |   #37140

Answer:

The Surviving Spouse and Children have rights to the homestead regardless of whether it is community or separate property in Texas.

The provision of the Texas Estates code provides as follows.

Sec. 102.002. HOMESTEAD RIGHTS NOT AFFECTED BY CHARACTER OF THE HOMESTEAD.

The homestead rights and the respective interests of the surviving spouse and children of a decedent are the same whether the
homestead was the decedent's separate property or was community property between the surviving spouse and the decedent.

The rights of the surviving spouse and children are established by Section 353.051 of the Texas Estates Code.

Sec. 353.051. EXEMPT PROPERTY TO BE SET ASIDE.
(a) Unless an application and verified affidavit are filed as provided by Subsection (b), immediately after the inventory, appraisement, and list of claims of an estate are approved or after the affidavit in lieu of the inventory, appraisement, and list of claims is filed, the court by order shall set aside:
(1)  the homestead for the use and benefit of the decedent's surviving spouse and minor children; and
(2)  all other exempt property described by Section 42.002(a), Property Code, for the use and benefit of the decedent's: (A)    surviving spouse and minor children;
(B)  unmarried adult children remaining with the decedent's family; and
(C)  each other adult child who is incapacitated.
(b)  Before the inventory, appraisement, and list of claims of an estate are approved or, if applicable, before the affidavit in lieu of the inventory, appraisement, and list of claims is filed:
(1)  the decedent's surviving spouse or any other person authorized to act on behalf of the decedent's minor children may apply to the court to have exempt property described by Subsection (a), including the homestead, set aside by filing an application and a verified affidavit listing all exempt property that the applicant claims is exempt property described by Subsection (a); and
(2)  any of the decedent's unmarried adult children remaining with the decedent's family, any other adult child of the decedent who is incapacitated, or a person who is authorized to act on behalf of the adult incapacitated child may apply to the court to have all exempt property described by Subsection (a), other than the homestead, set aside by filing an application and a verified affidavit listing all the exempt property, other than the homestead, that the applicant claims is exempt property described by Subsection (a).
(c)  At a hearing on an application filed under Subsection (b), the applicant has the burden of proof by a preponderance of the evidence.  The court shall set aside property of the decedent's estate that the court finds is exempt.