In Texas we have what is called a Survivor’s Homestead right. This right allow spouses of a decedent to remain in the homestead property after the death of a decedent and can be found in our Texas Constitution (Article XVI, § 52).

Essentially a surviving spouse, even if title is not vested in the spouse, cannot be made to vacate the homestead property by the heirs of the deceased spouse. This survivor homestead right is for the life of the surviving spouse or until the surviving spouse decides to voluntarily relinquish the homestead protections in the property.

The Survivor Spouse’s right to this Interest is true whether the homestead property is the community property of the spouses or the separate property of the deceased spouse. Furthermore, the homestead property cannot be divided or partitioned while the surviving spouse remains alive and living in the property. The surviving spouse’s right to continue to live on the property remains in place, even if the surviving spouse remarries.

Thus, for example: Mary, the surviving spouse of Hank, remarries Juan. Mary will be able to live with Juan (her new husband) throughout her lifetime in the house that was Hank’s separate property and Hank’s heirs cannot do anything about this scenario but patiently wait for Mary to either die or abandon the property.

However, there is a limitation on this and that is that the Survivor’s Homestead rights do not pass on to the new spouse; they are exclusive to the surviving spouse. They do not pass to a new spouse in line. So, in the example above, when Mary passes away, Hank will not succeed to her rights in the house. Immediately upon Mary’s death, the homestead, which was Hank’s separate property residence at the time he married Mary, will pass according to his estate planning documents or in the absence of them, to his heirs in accordance with Texas Law.