Can Surviving Step-Mom Be Forced To Sell?

We should all take the time to prepare an estate plan. This is good advice. It is the type of advice that is often stated by financial planners and general estate planning attorneys.

To an estate planning attorney, this advice is too broad and vague to really emphasize when an estate plan is really needed. The advice could be more specific.

This phraseology is more real and actionable: You get married a second time and have children from before the second marriage, you must get an estate plan. This is something a probate attorney would say.

The majority of probate disputes involve second marriages. They often involve disputes between the surviving step-parent and the step-children. The reason for this is that the family bond is often less with step-parents and step-children. This is particularly true when the step-children get married and their are step-children in law involved.

One common dispute involves the surviving step-parent and step-children over the marital residence. If the house was community property, the surviving step-parent cannot be forced out of the house. This results in joint ownership with the step-children. It’s helpful to consider the rules closer here, as this is a very common and very real dispute. The Wassmer v. Hopper, 463 S.W.3d 513 (Tex. App.–El Paso 2014), provides an opportunity to consider this situation.

Facts & Procedural History

This case involves a dispute between a step-mother and her husband’s children.

The step-mother and husband were married for nearly 30 years. They purchased a home together. It was community property.

The husband died intestate (i.e., without a will). He did so even though the estate was worth $26 million.

The step-mother retained her one-half interest in the house and the step-children inherited a one-half interest in the house.

When the husband died, the step-mother remained in the home.

The probate litigation addressed several issues. One of the questions was whether the step-children could force their stepmother to “buy out” their interest in the home.

Texas Intestacy & Homestead Laws

This case was decided based on the rules found in the Texas Probate Code. These rules are similar to those in the Texas Estates Code that is now in effect.

Under the probate rules, community property passes to the surviving spouse. There is an exception when the decedent had children outside of the marriage (i.e., when there are step children). The surviving spouse keeps her one-half community interest and the step-children inherit a one-half interest in the community property.

The Texas Constitution then grants the surviving spouse a life estate in the homestead:

On the death of the husband or wife, or both, the homestead shall descend and vest in like manner as other real property of the deceased, and shall be governed by the same laws of descent and distribution, but it shall not be partitioned among the heirs of the deceased during the lifetime of the surviving husband or wife, or so long as the survivor may elect to use or occupy the same as a homestead, or so long as the guardian of the minor children of the deceased may be permitted, under the order of the proper court having the jurisdiction, to use and occupy the same.

Texas law is known for its broad homestead protections. This is just one facet of Texas’ homestead protection laws.

Step-Children Cannot Force Partition of Homestead

In this case, the step-children did not want to own the property with the step-mother. They asked the court to partition the property, so that it could be sold.

The term “partition” means to split. Real estate is partitioned when the legal title awards part of the property to each party.

That is what the trial court did in this case. It concluded that the personal representative could distribute the one-half of the property to the step-mother and one-half to the step-children.

The appeals court had little difficulty concluding that the trial court erred in partitioning the property. The Texas Constitution expressly prohibits this.

Only the Spouse Can Partition the Homestead

Texas Estates Code 360.253 provides that only the surviving spouse can seek to partition community property. This is accomplished by the surviving spouse filing an application to partition the property. This includes the homestead if it is community property.

The step-mother did not file a request to partition the property in this case. Thus, she retained her homestead rights. This provided another basis for the appeals court to overrule the trial court’s holding.

The Takeaway

Texas law provides broad homestead protections for surviving spouses. In cases where the surviving spouse lives in a home that is community property, the courts cannot partition the property. Only the surviving spouse can ask to partition the property.

Thus, step-children who inherit an interest in community property that is being used by the surviving spouse as a homestead have to wait to succeed to title to the property. They cannot force the surviving spouse to buy out their interest by threatening to sell their interest.