A \u201cprobate homestead\u201d refers to the right of the surviving spouse to possess, occupy and use the marital homestead after the other spouse dies.\u00a0 The right supersedes any other right of stepchildren, beneficiaries under a will, and general estate creditors.\u00a0 This right exists even if the spouses were in the middle of a divorce, the house was entirely in the name of the deceased spouse, or the marriage was common-law instead of ceremonial.\u00a0 The right does not cease when the surviving spouse remarries.\u00a0 \u00a0The right cannot be assigned, has no separate value, and terminates when the surviving spouse dies.<\/p>\n
Not all of this comes completely free.\u00a0 The surviving spouse has the obligation to pay for the upkeep of the property (including normal repairs), property taxes, interest on any mortgage, and utilities.<\/p>\n
A \u201clife estate\u201d is slightly different.\u00a0 It gives a person, called a \u201clife tenant,\u201d the right to possess, occupy and use real property, but it can be assigned to someone else and has an actual monetary value.\u00a0 Unlike a probate estate, it can be created through a deed or contract.\u00a0 Sometimes a surviving spouse can have both a life estate and a probate estate \u2013 the life estate can arise when a married decedent with children from another marriage dies without a will.\u00a0 In that case, the surviving spouse has a 1\/3 life estate in the decedent\u2019s interest in the homestead.<\/p>\n
Enter the remaindermen.\u00a0 These poor souls own, but cannot occupy, possess or use, the house as long as it is subject to the life estate or probate homestead.\u00a0 They have a duty to pay the mortgage principal and property insurance.\u00a0 They can sell their remainder interest.<\/p>\n
Now for the storyboard.\u00a0 John and Ann are married and live in the house John purchased before marriage.\u00a0 John has 3 children from a prior marriage and no will – John dies.<\/p>\n
Result:\u00a0 Ann, as the surviving spouse, has a probate homestead and, as an heir, a 1\/3 life estate.\u00a0 John\u2019s 3 children, as heirs, are the remaindermen and own the house, and also have a 2\/3 life estate in the house.<\/p>\n
Real life effect:\u00a0 Ann and her step-kids are financially and emotionally intertwined for the rest of Ann\u2019s life.\u00a0 Ann gets to live in the house.\u00a0\u00a0 John\u2019s kids get to drive by and worry about whether she is properly maintaining it.\u00a0 They also have to come up with the money to pay the mortgage and insurance on property they cannot lease and may not get to occupy for a decade or two.\u00a0 Ann has to pay the mortgage interest and will not get any money for improvements she makes.<\/p>\n
Virginia, a 1982 SMU law school graduate, has advised clients for over 35 years. \u00a0For more information, visit hammerle.com<\/a>, and for newsletter sign-up, email legaltalktexas@hammerle.com<\/a>. \u00a0This column does not constitute legal advice.<\/p>\n","protected":false},"excerpt":{"rendered":" The characters in this particular drama are \u201cprobate homestead,\u201d \u201clife estate,\u201d and remaindermen.\u00a0 Audience Warning:\u00a0 many people will find this story disturbing. A \u201cprobate homestead\u201d refers to the right of the surviving spouse to possess, occupy and use the marital homestead after the other spouse dies.\u00a0 The right supersedes any other right of stepchildren, beneficiaries […]<\/p>\n","protected":false},"author":5,"featured_media":11773,"comment_status":"open","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"footnotes":"","_links_to":"","_links_to_target":""},"categories":[21],"tags":[],"class_list":{"0":"post-11082","1":"post","2":"type-post","3":"status-publish","4":"format-standard","5":"has-post-thumbnail","7":"category-legal-talk"},"yoast_head":"\n