Maya Holmes, a widow, decides to marry her new beau, I.M. Bitterman. Maya has two adult children from her first marriage, Iwanna Eura Holmes and Lo Theng Husbands. Maya owns a homestead as her sole and separate property that she had purchased with her late husband. After the marriage of Maya and I.M., Maya wants to revise her Will to make sure that if she dies first, her home would immediately pass to her children, Iwanna Eura Holmes and Lo Theng Husbands. I.M. has purchased no interest in his new wife’s home. Maya has the following questions to which her attorney responded:

Question 1: If my new spouse survives me, does he have any homestead rights even though it is my sole and separate property?

Answer: Article XVI, Section 52 of the Texas Constitution permits the surviving spouse the right to live in your homestead (even if it is your separate property and even if you have a pre or postnuptial agreement and even if your Will disinherits him or the property passes by intestacy) for the rest of his life.

Question 2: Can I simply gift the property or sell the property to be sure I.M. gets nothing?

Answer: Even if the homestead is your sole and separate property, Section 5.09 of the Texas Family Code provides that neither spouse may sell, convey or encumber the homestead without the joinder of the other spouse (except in unusual cases like a disappearance).

Question 3: If my new spouse, I.M., survives me and remarries again, will his new spouse be able to live in MY home?

Answer: Yes.

Question 4: (After Maya exclaims OMG!) Will my second husband’s new spouse be able to stay in MY home if she survives I.M.?

Answer: No. The survivorship rights of I.M. terminate upon his death or abandonment of the home.

Question 5: Who is responsible for the taxes, maintenance, etc. if my new spouse, I.M., survives me?

Answer: Since your surviving spouse has the right to occupy the home, he also has the obligation to pay all the taxes, mortgage, maintenance, utilities and insuring the property.

Question 6: Can my surviving spouse, I.M., sell MY home?

Answer: No. His right of occupancy does not include the right to sell it. Your children, Iwanna Eura Holmes and Lo Theng Husbands, should be successful in suing to terminate any sale of the home.

Maya’s final response to the attorney – I never want to fall in love again. If I do, perhaps I won’t remarry and consider an occupancy agreement so I can define the rights to MY home.

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