The Texas Constitution and Estates Code let a surviving spouse keep using the homestead, and the heirs cannot force a partition while they do. This guide explains that right, when it ends, how ownership splits with or without a will, and the ways families still sell, with each statute linked.
This is general information, not legal advice. Talk to a Texas probate attorney about your family's facts before anyone files in court. This guide is for children and stepchildren when a parent's widow or widower still lives in the family home, and for that spouse.
The short answer
The heirs can own the house, but in Texas they cannot force a partition for as long as the surviving spouse elects to use or occupy it as a homestead. A sale can still happen when the spouse agrees and signs with the other owners, sells their interest, or the right ends.
The rule appears in two places. The Texas Constitution, art. XVI, sec. 52 says the homestead descends like other real property of the deceased but shall not be partitioned among the heirs so long as the survivor may elect to use or occupy it as a homestead, or so long as the proper court lets the guardian of the deceased's minor children use and occupy it. Estates Code Sec. 102.005 restates both cases.
Partition is the court case co-owners use to divide a house or have it sold; our guide to forcing the sale of inherited property explains it.
Who owns what after the death
Under Estates Code Sec. 101.001, property a will leaves to someone vests in that person immediately, and without a will the estate vests immediately in the heirs at law, in both cases subject to the decedent's debts. The no-will shares come from Chapter 201, and our table of who inherits in Texas lays them out.
When a spouse survives, the shares depend on whether the property was separate or community. For the decedent's separate property, when the decedent left a child or a child's descendant, Sec. 201.002 gives the spouse a life estate in one-third of the land, with the remainder going to the decedent's children and their descendants. For community property, Sec. 201.003 turns on whether every child of the decedent is also the spouse's child (see the blended-family section below).
So the children can hold title, or part of it, while the spouse holds the right to keep living there. Title decides who signs a deed. The homestead right decides whether the heirs can force a partition.
What the spouse's right covers
The right attaches to the homestead, the family home. Three details matter:
- Separate or community, it is the same. Sec. 102.002 says the homestead rights of the surviving spouse and children are the same whether the house was the decedent's separate property or community property. A house a parent owned before remarrying is separate property under Family Code Sec. 3.001, and the spouse's homestead right still applies to it.
- The spouse decides. The statute's words are "elects to use or occupy." The choice is the spouse's, and the bar lasts during the spouse's lifetime for as long as that choice stands.
- Minor children are covered too. Under Sec. 102.005(2), the same bar applies while a court order lets the guardian of the decedent's minor children use and occupy the homestead.
The statute speaks of partition among the decedent's heirs. If a will left the house to the children, ask a probate attorney how the will and the homestead right fit together.
When the right ends
Estates Code Sec. 102.006 says the homestead may be partitioned among its owners in the same manner as other property held in common if:
- the surviving spouse dies;
- the spouse sells his or her interest in the homestead;
- the spouse elects to no longer use or occupy the property as a homestead; or
- the court no longer permits the guardian of the minor children to use and occupy it.
That is the whole list in the statute. If the family disagrees about whether one of these has happened, take that question to a probate attorney before anyone files for partition.
Probate and the homestead
If the estate goes through a court administration, three sections of Estates Code Chapter 353 touch the house:
- The set-aside. Under Sec. 353.051(a), once the inventory, appraisement and list of claims is approved, or the affidavit in lieu of it is filed, the court by order sets aside the homestead for the use and benefit of the surviving spouse and minor children. Sec. 353.051(b) lets the spouse apply for that earlier.
- No homestead to set aside. If the decedent left no homestead, Sec. 353.053 has the court make a reasonable allowance in lieu of one, capped at $45,000. A separate allowance for other missing exempt property is capped at $30,000.
- Liens are paid or continued. Under Sec. 353.151(b), if property set aside for the spouse or children carries a valid lien, the debt it secures is paid or continued against the property. A set-aside does not erase the mortgage.
If an executor wants to sell while the spouse lives there, ask the estate's attorney how the set-aside and the executor's powers fit together.
Creditors and the homestead
Under Estates Code Sec. 102.004, if the decedent was survived by a spouse or minor child, the homestead is not liable for the estate's debts, with listed exceptions: purchase money for the homestead, taxes due on it, qualifying improvement work, an owelty of partition (including one from a divorce), the refinance of a lien against it, a qualifying home-equity loan and a reverse mortgage. An ordinary credit card balance is not on that list, but a purchase-money or refinanced mortgage, the property taxes and a qualifying home-equity loan are, so the house still answers for those. Our inherited property guide covers debts, the mortgage and Medicaid claims.
Ways families still sell
The homestead right blocks a forced partition, not a sale everyone agrees to. That leaves four paths:
- The spouse joins the sale. The spouse and every heir who holds title sign. Agree in writing beforehand how the proceeds will be divided, since a life estate, a community half and a child's share are not the same size.
- The spouse sells their interest. Sec. 102.006 makes partition available once the spouse sells his or her interest in the homestead. Ask a probate attorney what that interest is in your family's case and how it can be sold.
- A buyout the other way. The spouse buys the heirs' shares and holds the whole title.
- Waiting. Partition opens up once an event on the Sec. 102.006 list happens. Meanwhile, agree on who pays the taxes, insurance and repairs.
If the heirs themselves cannot agree, our guide to a sibling who won't sell an inherited house covers buyouts and mediation. If the person in the house is a brother or sister who inherited a share, not a surviving spouse, that is a different case: see a sibling living rent-free in an inherited house.
If the person in the house is an ex-spouse
Estates Code Sec. 123.002 says a person whose marriage to the decedent was dissolved by divorce or annulment, or declared void, is not a surviving spouse, unless they remarried the decedent, were married at the time of death, and that later marriage is not declared void. The Sec. 102.005 right belongs to the surviving spouse, so an ex-spouse does not have it. A court order letting the guardian of the decedent's minor children use the home is a separate case under Sec. 102.005(2).
One paper trail to check is a transfer on death deed. If the decedent recorded a TOD deed naming the spouse and the marriage later ended, Estates Code Sec. 114.057(c) says the final divorce judgment revokes the TOD deed as to that beneficiary if notice of the judgment is recorded before the transferor's death in the deed records of the county where the deed is recorded.
Search the county deed records for both a TOD deed and a recorded divorce notice. If you find the deed but no recorded notice, ask a probate attorney what that means before you list or sign anything. If you inherited a house and are now divorcing yourself, see our guide to an inherited house in a Texas divorce.
Stepparents and blended families
Second marriages make the shares harder to sort out. Without a will, if the decedent left a child or other descendant who is not also the surviving spouse's, Estates Code Sec. 201.003(c) passes the decedent's undivided half of the community to the decedent's children or other descendants. That section does not pass the surviving spouse's own half.
That can leave stepchildren and a stepparent owning one house together, with the stepparent living in it. The stepchildren hold title to their shares, but they cannot force a partition while the stepparent elects to use or occupy the house as a homestead. If the house was the decedent's separate property, the stepparent's no-will share is the Sec. 201.002 life estate described above, and the homestead right is the same under Sec. 102.002.
So the realistic paths are the four above. Each starts with a conversation about what the stepparent needs in order to move, and what the children need in order to wait.
Selling to Cash Home Advisors when a spouse lives in the house
When the surviving spouse and the heirs agree to sell, Cash Home Advisors can help. We buy houses in Dallas–Fort Worth, Houston, San Antonio and Austin. Once everyone who must sign is ready and any probate paperwork is in place, we can close in 7–14 days, and we pay all closing costs. You can sell as-is, with no repairs.
Read our page on selling an inherited house in Texas, see how our process works, or request a cash offer. More guides are in our inherited property category.
The state index is the Texas hub.
Frequently asked questions
Can the children force a sale while their stepparent lives in the house?
Not through partition while the right lasts. Texas Constitution art. XVI, sec. 52 and Estates Code Sec. 102.005 say the homestead may not be partitioned among the decedent's heirs for as long as the surviving spouse elects to use or occupy it as a homestead. The children can still own their shares, and a sale can happen if the stepparent agrees and signs along with every heir who holds title.
When can the heirs partition the house?
Under Estates Code Sec. 102.006, the homestead may be partitioned like other property held in common once the surviving spouse dies, sells his or her interest in the homestead, or elects to no longer use or occupy it as a homestead, or once the court no longer permits the guardian of the minor children to use and occupy it.
Does the right apply if the house was the decedent's separate property?
Yes. Estates Code Sec. 102.002 says the homestead rights of the surviving spouse and children are the same whether the homestead was the decedent's separate property or community property.
Does an ex-spouse have this right?
No. Under Estates Code Sec. 123.002, a person whose marriage to the decedent was dissolved by divorce or annulment, or declared void, is not a surviving spouse unless they remarried the decedent, were married at the time of death, and that later marriage is not declared void. The Sec. 102.005 right belongs to the surviving spouse. A court order letting the guardian of the decedent's minor children use the home is a separate case under Sec. 102.005(2).
Can creditors take the house while the spouse lives there?
Only for certain listed debts. Under Estates Code Sec. 102.004, if the decedent was survived by a spouse or minor child, the homestead is not liable for the estate's debts except listed ones, such as purchase money, taxes due on the homestead, qualifying improvement liens, an owelty of partition, a refinanced lien, a qualifying home-equity loan and a reverse mortgage.
Sources
- Texas Constitution, Article XVI (Sec. 52 descent of the homestead and restrictions on partition)
- Texas Estates Code, Chapter 102 (Secs. 102.002, 102.004, 102.005 and 102.006 decedent's homestead)
- Texas Estates Code, Chapter 101 (Sec. 101.001 estate vests at death)
- Texas Estates Code, Chapter 201 (Secs. 201.002 and 201.003 intestate shares with a surviving spouse)
- Texas Estates Code, Chapter 353 (Secs. 353.051, 353.053 and 353.151 exempt property, allowances and liens)
- Texas Estates Code, Chapter 123 (Sec. 123.002 former spouse)
- Texas Estates Code, Chapter 114 (Sec. 114.057 transfer on death deed and divorce)
- Texas Family Code, Chapter 3 (Sec. 3.001 separate property)
General information, not legal or tax advice. Talk to a Texas attorney or CPA about your situation.