Do you think that if you are married that your spouse automatically is entitled to all of your assets? 

man with box

Do you think that if you disinherit your spouse or perhaps your children in your Will that they automatically will not be entitled to any rights to your assets? 

If you thought the answer is “yes” to either question, then you might be surprised that under Texas law there are certain protections for your surviving spouse, children who are a minor or incapacitated, and an unmarried adult child living in your home – even if you disinherited them in your Will. 

For example, if the deceased spouse owned a homestead, the surviving spouse is entitled to occupy the home for the rest of his or her life – even if it was separate property and even if it was bequeathed to someone else in the deceased spouse’s Will. This is a common problem when the deceased spouse had children from a prior marriage or relationship. However, the surviving spouse does have the obligation to pay the property taxes, mortgage interest and maintain the property. 

The homestead and certain personal property items (i.e., home furnishings, farm and ranching vehicles, tools, equipment, boats and motor vehicles used in a trade, clothes, two firearms, certain animals, etc.) up to a value of $100,000 is protected from most creditors claims if the person who passed is survived by a spouse, minor child or adult child living in the home. 

If the deceased did not own a homestead, the surviving spouse can request of the court an allowance up to $45,000 in lieu of the homestead. If there is a homestead and the equity is less than $45,000, an allowance could be permitted due to the low amount of equity in the home. 

Additionally, there can be an allowance up to $30,000 for any of the personal property items (listed above) that the deceased did not possess for the surviving spouse, minor children, adult children living at the home and incapacitated adult children. If there is not enough money to pay for such allowances, the executor or administrator of the estate could even seek payment of the allowances from assets that passed by beneficiary designation (which normally supersedes probate). 

Furthermore, Texas has another protection for the less-moneyed surviving spouse, minor children and adult incapacitated children – a family allowance that is sufficient to take care of their support and maintenance for a year after the death of the deceased. The surviving spouse must prove that they have inadequate separate property for maintenance (community property is not considered). Similarly, an adult incapacitated child or a child who is a minor must also prove that they do not have enough assets to provide for their maintenance for a year. However, certain expenses such as funeral expense, federal tax liens and expenses of last illness take priority over a family allowance. 

Texas gives your surviving spouse, minor children, incapacitated children and unmarried adult children living in the home some protection – even if you do not! 

If interested in learning more about this article or other estate planning, Medicaid and public benefits planning, probate, etc., attend one of our free upcoming virtual Estate Planning Essentials workshops by clicking here or calling 214-720-0102.  We make it simple to attend and it is without obligation.

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