Can the new wife live in the house for the rest of her life?
The information in this column is intended to provide a general understanding of the law, not as legal advice. Readers with legal problems, including those whose questions are addressed here, should consult attorneys for advice on their particular circumstances.
Q: A divorced woman with three children married a divorced man with three children, and together they bought a home. The woman died without a will, and the man remarried. He is now about to die, and his new wife thinks she can live in the home until she dies. Is this right? At what point can the property be sold and the funds be divided among the six children? If the man writes a will, can he give his new wife the entire home? A: The new wife is incorrect. When the first wife died without a will, her children inherited her half of the home, subject to her husband's exclusive right to live there until his death. While he is alive, the wife's children cannot force him to move out or sell the home. But the fact that he is now remarried does not mean that when he dies, another life estate will exist for his new wife.
At his death, his life estate will end, and technically his new wife would have the right to live in half of the home for the rest of her life. However, this right would not entitle her to exclusive possession of the home.
If the husband signs a will, he can leave his half of the home to his new wife, to his children or to anyone else he wants. But he can't give away more than half the home since that is all he owns.
If he does not have a will, his half of the home would pass to his children under the Texas intestacy laws.
After the husband later dies, whether or not he has a will, the co-owners of the home will hopefully agree to sell it and split the proceeds based upon the percentage each of them owns. If they can't agree to sell, then any one of them can hire a lawyer, go to court and file a lawsuit to force a sale.
Q: My brother and I inherited our mother's house (which has no mortgage) when she died, so now each of us owns a one-half interest. He and his wife (who have three grown children) currently live in the house. What happens to the house if my brother dies without a will?
A: In that case, your brother's half interest would pass to his three children, with each inheriting a one-sixth interest, and you would continue owning your one-half interest.
Just like the situation in the first question previously, your brother's wife would not have the right to live there for the remainder of her life.
Ronald Lipman, of Houston law firm Lipman & Associates, is board certified in estate planning and probate law by the Texas Board of Legal Specialization. stateyourcase@lipman-pc.com