Can Stepchildren Force a Surviving Spouse to Sell Homestead Property?

Conflicts often arise in blended families when one spouse dies. This is especially true if the deceased spouse’s children and their stepparent do not have a close relationship. Problems are compounded when the deceased spouse dies intestate (without a Will).

How is Property Distributed When a Spouse Dies without a Will in a Blended Family?

In Texas, when someone dies without a Will, the Texas intestacy statutes dictate how property will be divided at death.

1. Many couples believe that a surviving spouse will inherit all the deceased spouse’s share of community property. That is not the case when there is no Will in blended families. The deceased spouse’s share in community property passes to the deceased spouse’s children, not the surviving spouse.
2. If the deceased spouse had property classified as separate property, the surviving spouse inherits only a life estate in one-third of that property. The deceased spouse’s children inherit the remainder in equal shares.

Homestead Property

A deceased spouse’s children may want to take their share of their inheritance and sever ties with their stepparent after their parent’s death. However, cutting ties can be difficult when the property is homestead property. This is true even if the property classified as the deceased spouse’s separate property. It can also be a problem when the deceased spouse leaves a Will.

Certain constitutional protections are available for surviving spouses in Texas. Surviving spouses have a constitutional right to reside in a homestead for the term of their life. They cannot be forced to sell the property as long as they occupy and use it.

The property’s heirs may be able to take possession of the property if they demonstrate the surviving spouse abandoned it. However, abandonment is hard to prove. In fact, there is authority stating that a surviving spouse can retain a life estate even if he or she moves out and rents the property to someone else.

Nevertheless, if the surviving spouse sells the property during his or her lifetime or elects to no longer use or occupy the property as his or her homestead, then the proceeds of the sale can be divided among the respective owners of the property.

Otherwise, stepchildren will simply have to wait until the surviving spouse dies to take control of their share of the homestead.