The survivor's homestead exemption lasts only as long as the spouse occupies or uses the homestead property. If the surviving spouse vacates the property and does not use it, then the property passes either as written in the will or if there is no will then according to the laws of intestacy. To "use" the property, it is not required that the surviving spouse reside on the homestead property. For example, case law shows that the surviving spouse could rent the land out to satisfy the "use" requirement and he or she would then be entitled to all rents and revenues earned off the homestead rental. See Rancho Oil Co. v. Powell, 175 S.W.2d 960 (1943) and Petrus v. Cage Brothers, 128 S.W.2d 537 (Tex. Civ. App.—San Antonio 1939, writ ref’d n.r.e.). The homestead right protects the survivors homestead from forced sale by creditors and from legal actions for partition by the heirs or beneficiaries of the deceased spouse. Riley v. Riley, 972 S.W.2d 149 (Tex. App.—Texarkana 1998, no pet.).
In exchange for these rights, the survivor is required to maintain the homestead and make payments of all property taxes and mortgage interest without the right of reimbursement from the estate of the deceased spouse. Williams v. Davis, 133 S.W.2d 275, 278 (Tex. Civ. App.—Fort Worth 1939, no writ).
In conclusion, a surviving spouse does not have to move out of the homestead property, even if it should pass to another person according to the deceased spouse's will or the Texas laws of intestacy. The surviving must pay property tax and any mortgage interest, and he or she must occupy or "use" the land in order to keep the survivor's homestead rights from expiring.
Do you have more questions about probate of an estate, making a will to provide for your spouse, or the rights of a surviving spouse in Lampasas, Kempner, Lometa, Bend, or Copperas Cove? Contact us at Martin, Millican, Henderson & Shrum for a consultation.
This blog post only applies to the laws of Texas. The post may or may not match your individual situation. Be careful not to treat it as specific legal advice, as it may not meet your individual needs. It may give you a solid basis for discussion with your own attorney. You should consult with your personal attorney before you take any action on this or any legal issue. Also, please be aware that laws change, so this column is valid only as of the date it was published. This communication does not create an attorney-client relationship between the author and the reader.