Legal Question in Wills and Trusts in Texas

Re: Is a life estate on home automatic in Texas

This response is written as if addressed to your mother.

You need an attorney to assist you in this matter. You should have enough in your husband's estate to justify any attorneys' fees you might incur.

Although the will is void as to the ex-spouse, I assume that your husband's estate was willed to his children. Here are the things that you will want to consider:

1. In addition to the homestead, certain personal property of the estate (defined as property exemption from execution), may be set aside for the spouse. Alternatively, the surviving spouse may apply for an cash allowance up to a total of $15,000.

2. How much of the estate was acquired during the marriage that did not come to your husband by gift or by inheritance. This likely is community property for which you own half of what has not been spent. For example, if he had a separate investment account, certificates of deposit, etc. that were reinvested, then absent a specific qualified written marital agreement to the contrary, the reinvested earnings are community property for which you own half.

3. Was any community property used to pay off mortgages that were owed by your husband prior to your marriage. You may have a community 1/2 reimbursement coming from this.

4. Temporary leasing does not destroy a homestead. However, it is risky without an agreement. Perhaps you and his children can reach an agreement on selling the homestead and dividing the proceeds using actuarially calculations for values. In other words, when applying actuarial calculations, a life estate is worth a certain amount depending upon the survivor's age. A sale along this line may be a win-win for you and his children.