Respectfully Submitted by Patricia D. Henderson
A Homestead is generally defined as "the dwelling" house constituting the family residence together with it's land on which it is situated and the appurtenances connected there with.
Unlike some states, Texas does not require a formal designation of the property as a homestead. For the qualifying property, the Homestead protection arises automatically.
A surviving spouse has probate homestead rights, that being, if the decedent is survived by a spouse or minor child/children the spouse is entitled to occupy the homestead as long as he or she chooses to occupy it. The surviving spouse has what amounts to a life estate. When the spouse fails to occupy the homestead, the right ceases.
The surviving spouse's right to occupy the homestead is independent of title; if the property was devised to someone else, such person takes title subject to the spouse's right of homestead occupancy. The property cannot be sold or partitioned out from the person asserting the homestead, and this homestead right is not extinguished by the surviving spouse's remarriage.
The fact that a surviving spouse owned another house in which he or she could live in does not preclude the surviving spouse's homestead right.
If the occupancy right is not claimed by the surviving spouse, or if there is no surviving spouse, the minor children can claim it. The children's homestead right of occupancy terminates when the children are no longer minors.
