Many people think there is no reason to have a will because the surviving spouse will inherit everything from a deceased spouse. But in many cases where there is not a will, that is not the case. Particularly when the decedent’s property was his or her separate property or where the decedent had children not from the current marriage. Even if there is a will, the decedent may have left much or all of his or her property to someone other than a spouse.
So what is a surviving spouse to do when it turns out that much of the decedent’s estate is not left to the surviving spouse? What rights does the surviving spouse have? Texas law provides a few protections just to protect surviving spouses in situations like these.
The Probate Homestead. If the primary residence is owned, the surviving spouse may qualify for a probate homestead upon the passing of their spouse. This means the surviving spouse may live in the residence until his or her passing regardless of whether the home was left to them. The surviving spouse will have certain financial responsibilities if they wish to continue living there – payment of real property taxes on the residence and mortgage interest.
Exempt Property Set-aside. Texas law allows a court to set-aside the homestead and exempt property for the use and benefit of the surviving spouse (also for minor children, unmarried adult children remaining with decedent’s family and any incapacitated adult child). This property is exempt from creditors’ claims. The Texas Property Code describes what is exempt property. If the decedent did not own all items described as exempt property, the court may grant an allowance in lieu of the items described as exempt property that are not a part of the decedents property. This allowance may not be greater than $45,000 in lieu of a homestead and not be greater than $30,000 other exempt property.
Family Allowance. Texas law provides for a family allowance for the surviving spouse, minor children and adult incapacitated children. It is meant to be a sufficient amount for their support and maintenance for one year from the decedent’s date of death and takes into account the separate property the applicants have to maintain themselves.
As you can see, these protections are not intended to support the family left behind long term, but may serve to allow the family to get along until the estate can be settled or other arrangements made for ongoing income.