Battle with stepfather over house is likely lost cause
Q: My mother passed away in April, leaving a will with the provision that her husband of 14 years could live in her home if he pays insurance, taxes and upkeep. If he remarries, he must pay me rent. My mother inherited the home from her mother, and it is debt-free. Everything else she owned, including the home after my stepfather dies, was left to me. Her husband says I have cheated him out of money, and he refuses to pay any expenses because it is my property, not his. Is there any way to get him off my property? A: Probably not. What your mother gave him in her will is essentially the same as his homestead right under Texas law. In other words, he already had the right to live there rent free for the rest of his life, whether or not she said so in her will.
However, it should be noted that Texas law is a little different than what your mother stated in her will. Under the law, he must pay for all of the upkeep and property taxes, and you must pay property insurance premiums. Your mother attempted to shift the burden of paying insurance premiums to him. Also, Texas law allows him to remarry and still live in the home without having to pay you rent.
What makes your case really weak is the long-standing principle in Texas that a surviving spouse has a homestead right in the deceased spouse's home. This right can be abandoned, but the burden is on you to show abandonment has occurred. This will be difficult to prove, especially since he is still living there.
If you want to pursue this matter, and you are willing to spend what might turn out to be considerable legal fees on a losing battle, then you should hire an experienced probate litigation attorney. Your lawyer might conclude it's possible to force your stepfather off your property because of his refusal to pay for the upkeep of the property.
You might also be able to get a court to declare who must pay the insurance premiums and whether the remarriage condition is valid.
Most judges will be reluctant to issue a ruling forcing your stepfather to move out. The odds are he would prevail in court on this issue.
Keep in mind that if neither of you pays the utilities, at some point the gas, water and electricity will all get shut off. And if the property taxes aren't paid, the taxing authorities will eventually take action, and that could result in the home being sold to pay the back taxes.
Don't overlook the possibility that if you file suit, your stepfather might counter with a will contest claiming you unduly influenced your mother into cutting him out almost completely.
The information in this column is intended to provide a general understanding of the law, not legal advice. Readers with legal problems, including those whose questions are addressed here, should consult attorneys for advice on their particular circumstances.
Ronald Lipman of the Houston law firm Lipman & Associates is board-certified in estate planning and probate law by the Texas Board of Legal Specialization. Email questions to stateyourcase@lipmanpc.com.