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ScottyMacEsq
ScottyMacEsq, Lawyer
Category: Family Law
Satisfied Customers: 11318
Experience:  Licensed Texas General Practice Attorney
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I live in Texas. My spouse is terminally ill and his children

Resolved Question:

I live in Texas. My spouse is terminally ill and his children are demanding that i vacate our home. I am feeling threatened and don't know what to do.
Submitted: 10 months ago.
Category: Family Law
Expert:  ScottyMacEsq replied 10 months ago.

ScottyMacEsq :

Thank you for using JustAnswer. I am researching your issue and will respond shortly.

ScottyMacEsq :

Just to be clear, this is the marital home?

ScottyMacEsq :

(that is, where you and your spouse reside?)

Customer:

Yes. He had the home prior to us getting married.

ScottyMacEsq :

Thank you. You have no obligation to vacate, even if you don't have any ownership rights in the property itself. The reason is, that as the surviving spouse (once the spouse dies) you have a "homestead" interest in the property.


Upon the death of either the husband or wife (or both), the homestead property shall “descend and vest in like manner as other real property of the deceased.” Prob. Code § 283. However, the surviving spouse is entitled to retain a constitutional survivor’s homestead right for life or for so long as the survivor elects to use the homestead. Id. This right protects the homestead against forced sale and partition so long as the surviving spouse chooses to use and occupy the homestead. Prob. Code § 284. The survivor’s homestead is not conditioned on the survivor’s status as head of the household. Blum v. Gaines, 57 Tex. 119 (1882). Occupancy rights of the surviving spouse are discussed in greater detail in § III(C), below.


The survivor’s homestead right may not be defeated by either spouse through the devise of the homestead in either party’s will. Rather, the laws of testamentary disposition are subject to the survivor’s homestead right. White v. Sparks, 118 S.W.2d 649 (Tex. Civ. App.—Dallas 1938, writ dism’d).

ScottyMacEsq :

In short, they can't just "kick" you off the property, even if they're the ultimate owners of the property.

ScottyMacEsq :

You would have the right to stay at the property until your death, regardless of how your spouse disposes of the property by will.

ScottyMacEsq :

They would have no legal right to remove you from the property.

ScottyMacEsq :

Hope that clears things up a bit. If you have any other questions, please let me know. If not, and you have not yet, please rate my answer AND press the "submit" button, if applicable. Please note that I don't get any credit for my answer unless and until you rate it a 3, 4, 5 (good or better). Thank you, XXXXX XXXXX luck to you!

Customer:

If I leave due to them threatening me, would i lose my rights ?

ScottyMacEsq :

Yes. You only retain your rights as long as you stay there.

ScottyMacEsq :

But if they forcibly evict you (wrongfully) you don't lose your rights. Only if you voluntarily leave (even in face of their threats) would you lose those rights.

Customer:

Thanks. I think I need to get an attorney. They are not making this situation easy.

ScottyMacEsq :

My pleasure, and I agree with you there. But now you know your rights, and you can let them know that they don't have anything that they could do to make you leave. If you have any other questions, please let me know. If not, and you have not yet, please rate my answer AND press the "submit" button, if applicable. Please note that I don't get any credit for my answer unless and until you rate it a 3, 4, 5 (good or better). Thank you, XXXXX XXXXX good luck to you!

ScottyMacEsq, Lawyer
Category: Family Law
Satisfied Customers: 11318
Experience: Licensed Texas General Practice Attorney
ScottyMacEsq and other Family Law Specialists are ready to help you

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