Homestead rights let spouse stay in longtime home
Q: I owned my home free and clear before I married my current husband. I’m giving the home to my son when I die. I understand my husband can live there with my son until my husband dies. How does my son get my husband to help pay bills, taxes and insurance? What if my husband refuses? My son can’t maintain the home by himself! If my son has to sell his childhood home, what does my husband get? Will a postnuptial agreement where my husband relinquishes his rights help me?
A: Your understanding of the law is incorrect. Your husband does have the right to live in your home until he dies, but he won’t be forced to have your son as a roommate.
If your husband survives you, he will have exclusive occupancy rights to the home. If he wants, he can allow your son to live there with him and even share expenses, but he will be under no obligation to do so.
Under Texas law, your husband would have to pay for upkeep, utilities and property taxes, and your son would be responsible for insuring the property.
If your husband fails to pay for the upkeep and utilities, the house may eventually fall into disrepair and become unlivable. If he fails to pay the property taxes, the taxing authorities would eventually force a sale to collect what they are owed.
If your son fails to pay the insurance premiums, then the property will be at risk of great loss should something such as a
fire occur.
You asked what happens if your son has to sell the home. After your death, for as long as your husband is alive and chooses to occupy your home, your son will have no right to sell the home.
Your son will be able to sell the home only after your husband dies or abandons the home.
A post-nuptial agreement would help. However, it might be difficult to persuade your husband to sign away his homestead right. The right to live in a home rent-free could be worth tens or even hundreds of thousands of dollars.
Q: Recently a lawyer drafted a new will for me. It was not filed with the county clerk, and I did not initial each page. Is my will valid? Also, does the original of a Statutory Durable Power of Attorney have to be filed with the county clerk in order to be valid?
A: A will doesn’t need to be recorded to be valid. And there is no requirement that a will must be initialed on each page. Most lawyers recommend initialing because it makes it harder for someone to swap out undesirable pages for new ones with different terms.
A power of attorney needs to be recorded only if it is used in a real estate transaction, and it can be recorded at that time.
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.