When a person dies who owns a home and has a spouse or dependent children, Texas limits how the owner can dispose of the home. This article will discuss the basics of the Texas homestead and what rights a surviving spouse or dependent children have.

Texas Homestead

A homestead is defined in the Texas Constitution and in the

Texas Property Code and differs as to whether it is rural or urban or whether the homesteader has a family or is a single adult. The primary purpose of the homestead is to preserve the family as a basic unit of society. The fundamental idea connected with a Texas homestead is “that of a place of residence for the family, where the independence and security of a home may be enjoyed, without danger of its loss, or harassment and disturbance.” Homestead protections are liberally construed to prevent people from losing their homes.

What Property Can Be A Texas Homestead

An urban homestead is limited to one or more contiguous lots amounting to no more than ten acres. A rural homestead is limited to 200 acres for married persons and 100 acres for a single person. A person cannot claim both a rural and an urban homestead. A Texas homestead must be attached to land. A boat, even a 60 foot yacht, can’t be Texas homestead. Neither can a motorhome.

When Does A Texas Homestead Arise

When an owner dies, a Texas homestead right is acquired as a matter of law based upon whether there is a surviving spouse and/or surviving minor children. Texas does not require designation of a probate homestead; it arises automatically. Texas homestead rights vest immediately on death and continue until abandoned. The Texas homestead right arises at the date of death of the decedent spouse, and it is immaterial whether the probate court has set aside the homestead. Furthermore, the Texas homestead right arises even if the deceased spouse’s will is not probated. Texas homestead rights and the respective interests of the surviving spouse and children of a decedent are the same whether the homestead was the decedent’s separate property or was the community property of the surviving spouse and the decedent. The probate homestead forms no part of the estate to be administered by the probate court, and an attempted sale by the probate court of the homestead for any purpose other than permitted by the constitution is void.

What If Surviving Spouse Has A Home

The fact that a surviving spouse owns a house in which he/she could live does not preclude assertion of the Texas homestead right of occupancy. It is not required of him/her that he/she both use and occupy, but only that he/she either use or occupy. However, a family is not entitled to two homesteads at the same time.

What If the Surviving Spouse Remarries

The Texas homestead right is not merely during the widowhood of the surviving spouse, but so long as he/she might elect to use or occupy the same as the homestead. This is true even if the surviving spouse remarries. The Texas homestead right ceases, however, upon the death of the homesteader. It would not transfer to the new spouse.

What If There Are Debts of The Estate

The Texas homestead, whether decedent’s estate is solvent or insolvent, descends to his heirs, subject to the rights of the surviving spouse and minor children exempt from liability for the decedent’s debts. The Texas homestead may not be sold to pay general debts of the estate.

Can The Texas Homestead Be Abandoned

Texas homestead once established is presumed to continue until there is proof it has been abandoned. Proof of an intention to abandon a homestead must be clear and conclusive. To establish abandonment of a prior homestead, there must be evidence of an intent not to return to the previous homestead and an intent not to claim a homestead exemption on such property. Intention alone is not sufficient to constitute abandonment; overt acts of preparation consistent with such intention are required.


The Texas homestead is meant to protect a surviving spouse and dependent children from being left homeless. It is protected by the courts and it’s sweep is large. Very few things are protected as strongly as the Texas homestead.

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Robert Ray is the Editor and owner of this site. Board Certified, Personal Injury Trial Law — Texas Board of Legal Specialization.

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