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According to the Texas homestead law and the Texas Probate Code, a surviving spouse has the right to live in exempt homestead property if she so chooses. If your surviving spouse decides to claim her homestead exemption and live in her homestead during her lifetime, your homestead estate cannot pass to your surviving heirs. Texas’ generous homestead laws also provide homestead exemptions to surviving spouses for personal homestead property. This means that if you created a will and left your personal and real property subject to the Texas homestead exemption to other heirs, your bequests may be invalid.
The Texas homestead laws classify homestead property as an “urban homestead” or “rural homestead.” Urban homestead property includes up to 10 acres of real property and improvements on the property. A rural homestead includes up to 200 acres of rural land and improvements.
Although most cannot, some creditors may be able to seek a forced sale of your homestead property to satisfy their debts or unpaid property taxes. However, other heirs or putative beneficiaries cannot force surviving spouses to sell their homestead property in their favor. The one exception to the homestead property exemption is if a surviving spouse abandons his claim by living elsewhere. Proving that a surviving spouse abandoned her claim is difficult, however.
The Mendel Law Firm, L.P. is a member of the American Academy of Estate Planning Attorneys.