Can My Husband Give His Children Our Homestead If He Owned It Before We Married?

I received a note from a concerned wife.

Her husband had purchased the home in which they reside two years before they were married. Throughout their marriage, she contributed to paying the mortgage and paying bills associated with its upkeep; however, she discovered that he was writing a Will giving the home to his children instead of her.

She asked: Is it legal for him to leave the property to his children instead of me?

Whether property is characterized as separate or community property is fixed at the “inception of title.” If acquired before marriage, property is classified as separate property. If it is acquired after marriage, it is presumed to be community property.

An individual can dispose of separate property as he wishes in a Will. However, certain constitutional protections are available for surviving spouses in Texas. A surviving spouse is entitled to a life estate in the homestead, and cannot be forced to sell the property as long as he or she occupies and uses it.

So despite the fact that the separate property is given to someone other than a spouse, a spouse has the right to live on the property for as long as he or she desires without fear of eviction.

Additionally, even though the property is separate property, the fact that community funds or separate funds are spent to improve or payoff separate property may give rise to a claim for reimbursement.