In a community property state (TX), if a spouse dies, must the community home be sold so that so value can be distributed as stated in a will?


1 Answer 1


Texas probate law is a hybrid of community property concepts and concepts derived from the unreformed common law historical norm, like dower and curtsey for a surviving spouse. Texas also has uniquely strong protections of "homestead" rights. With regard to the marital residence, the State Bar of Texas explains that:

Upon death, the homestead is set aside for use by minor children of the deceased and the surviving spouse. The surviving spouse has the exclusive right to occupy the homestead for his or her life—even if the home is the separate property of the decedent and gifted to someone other than the surviving spouse. Though the surviving spouse has certain responsibilities with respect to the property, including routine maintenance and care and payment of property taxes and mortgage interest, by virtue of being a surviving spouse, he or she has the exclusive right to occupy the home for as long as he or she desires as long as these responsibilities are maintained.

The State Bar of Texas cites to the following legal authorities in support of this statement:

Tex. Est. Code §§ 102.004, 102.005, 353.051, and 353.152; and Hill v. Hill, 623 S.W.2d 779, 781 (Tex. App.—Amarillo 1981, writ ref’d n.r.e.).

For example, Tex. Est. Code § 102.004 states in the pertinent part: "If the decedent was survived by a spouse or minor child . . ." and Tex Est. Code § 102.005 states:

The homestead may not be partitioned among the decedent's heirs:

(1) during the lifetime of the surviving spouse for as long as the surviving spouse elects to use or occupy the property as a homestead;  or

(2) during the period the guardian of the decedent's minor children is permitted to use and occupy the homestead under a court order.

The homestead exemption described above is available even if neither the decedent nor the surviving spouse have minor children.

The executor of the estate of a Texas decedent with a surviving spouse can still transfer the decedent's undivided one-half interest in the home to an heir in satisfaction of an inheritance right subject to this life estate of the surviving spouse (which wouldn't be that uncommon because it would allow the probate estate to be closed), or can sell the home subject to this life estate of the surviving spouse.

But in the vast majority of cases, an arms length ordinary buyer of a residence would not agree to these terms and almost no financial institution in the business of mortgage lending would agree to finance such a sale.

  • There are no minor children . So , it sounds like the executor may transfer the decedents half in accordance with the estate ? Commented Oct 25, 2023 at 21:11
  • @blacksmith37 If there is a surviving spouse, the lack of minor children is irrelevant. The presence of minor children is not a condition for claiming the homestead exemption. It can be claimed by a surviving spouse who does not have minor children.
    – ohwilleke
    Commented Oct 25, 2023 at 21:13

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