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Estates and Guardianship Code
Proposed Chapters
81C148(3) MTB

81C148(3) MTB

 

CHAPTER 102. PROBATE ASSETS: DECEDENT'S HOMESTEAD

Sec. 102.001.  TREATMENT OF CERTAIN CHILDREN ............... 1

Sec. 102.002.  HOMESTEAD RIGHTS NOT AFFECTED BY

                 CHARACTER OF THE HOMESTEAD ................ 1

Sec. 102.003.  PASSAGE OF HOMESTEAD ........................ 2

Sec. 102.004.  LIABILITY OF HOMESTEAD FOR DEBTS ............ 2

Sec. 102.005.  PROHIBITIONS ON PARTITION OF HOMESTEAD ...... 3

Sec. 102.006.  CIRCUMSTANCES UNDER WHICH PARTITION OF

                 HOMESTEAD IS AUTHORIZED ................... 5

CHAPTER 102. PROBATE ASSETS: DECEDENT'S HOMESTEAD

Revised Law

Sec. 102.001.  TREATMENT OF CERTAIN CHILDREN. For purposes of determining homestead rights, a child is a child of his or her mother and a child of his or her father, as provided by Section ___ [[[Tex. Prob. Code, Secs. 42(a) and (b)]]]. (Tex. Prob. Code, Sec. 42(c) (part).)

Source Law

(c)  Homestead Rights, Exempt Property, and Family Allowances. A child as provided by Subsections (a) and (b) of this section is a child of his mother, and a child of his father, for the purpose of determining homestead rights,  .

Revised Law

Sec. 102.002.  HOMESTEAD RIGHTS NOT AFFECTED BY CHARACTER OF THE HOMESTEAD. The 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 community property between the surviving spouse and the decedent. (Tex. Prob. Code, Sec. 282.)

Source Law

Sec. 282.  The homestead rights of the surviving spouse and children of the deceased are the same whether the homestead be the separate property of the deceased or community property between the surviving spouse and the deceased, and the respective interests of such surviving spouse and children shall be the same in one case as in the other.

Revisor's Note

Section 282, Texas Probate Code, refers to "the deceased." Throughout the Texas Probate Code, a deceased person is more commonly referred to as a "decedent." The revised law throughout this chapter substitutes references to a "decedent" for references to the "deceased" for consistency of terminology throughout this code.

Revised Law

Sec. 102.003.  PASSAGE OF HOMESTEAD. The homestead of a decedent who dies leaving a surviving spouse descends and vests on the decedent's death in the same manner as other real property of the decedent and is governed by the same laws of descent and distribution. (Tex. Prob. Code, Sec. 283.)

Source Law

Sec. 283.  On the death of the husband or wife, leaving a spouse surviving, 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.

Revised Law

Sec. 102.004.  LIABILITY OF HOMESTEAD FOR DEBTS. The homestead is not liable for the payment of any of the debts of the estate, other than:

(1)  purchase money for the homestead;

(2)  taxes due on the homestead;

(3)  work and material used in constructing improvements on the homestead if the requirements of Section 50(a)(5), Article XVI, Texas Constitution, are met;

(4)  an owelty of partition imposed against the entirety of the property by a court order or written agreement of the parties to the partition, including a debt of one spouse in favor of the other spouse resulting from a division or an award of a family homestead in a divorce proceeding;

(5)  the refinance of a lien against the homestead, including a federal tax lien resulting from the tax debt of both spouses, if the homestead is a family homestead, or from the tax debt of the decedent;

(6)  an extension of credit on the homestead if the requirements of Section 50(a)(6), Article XVI, Texas Constitution, are met; or

(7)  a reverse mortgage. (Tex. Prob. Code, Sec. 270.)

Source Law

Sec. 270.  The homestead shall not be liable for the payment of any of the debts of the estate, except for:

(1)  the purchase money thereof;

(2)  the taxes due thereon;

(3)  work and material used in constructing improvements thereon if the requirements of Section 50(a)(5), Article XVI, Texas Constitution, are met;

(4)  an owelty of partition imposed against the entirety of the property by court order or by a written agreement of the parties to the partition, including a debt of one spouse in favor of the other spouse resulting from a division or an award of a family homestead in a divorce proceeding;

(5)  the refinance of a lien against a homestead, including a federal tax lien resulting from the tax debt of both spouses, if the homestead is a family homestead, or from the tax debt of the decedent;

(6)  an extension of credit on the homestead if the requirements of Section 50(a)(6), Article XVI, Texas Constitution, are met; or

(7)  a reverse mortgage.

Revised Law

Sec. 102.005.  PROHIBITIONS ON PARTITION OF HOMESTEAD. The homestead may not be partitioned among the decedent's heirs:

(1)  during the lifetime of the surviving spouse for as long as the surviving spouse elects to use or occupy the property as a homestead; or

(2)  during the period the guardian of the decedent's minor children is permitted to use and occupy the homestead under a court order. (Tex. Prob. Code, Sec. 284.)

Source Law

Sec. 284.  The homestead shall not be partitioned among the heirs of the deceased during the lifetime of the surviving spouse, or so long as the survivor elects to use or occupy the same as a homestead, or so long as the guardian of the minor children of the deceased is permitted, under the order of the proper court having jurisdiction, to use and occupy the same.

Revisor's Note

(1)  Section 284, Texas Probate Code, in part, prohibits the partition of a decedent's homestead "during the lifetime of the surviving spouse, or so long as the survivor elects to use or occupy the same as a homestead." Section 52, Article XVI, Texas Constitution, and the predecessor statutes to Sections 282-284, Texas Probate Code, revised as this chapter, have been held to entitle a surviving spouse to the exclusive right to possess, use, and occupy the homestead of a decedent until the surviving spouse's death. See, for example, Sargeant v. Sargeant, 15 S.W.2d 589 (Tex. 1929). However, the right to possess, use, and occupy the homestead terminates on the surviving spouse's abandonment of the homestead. See Moore v. Moore, 33 S.W. 217 (Tex. 1895); Hoefling v. Hoefling, 167 S.W. 210 (Tex. 1914). On the surviving spouse's election to no longer use or occupy the property as a homestead, Section 285, Texas Probate Code, revised as Section 102.006 of this chapter, authorizes the partition of the homestead among its respective owners. The revised law therefore clarifies that the prohibition on partitioning the homestead continues throughout the surviving spouse's lifetime as long as the surviving spouse elects to use or occupy the property as a homestead.

(2)  Section 284, Texas Probate Code, refers to an order rendered by a "proper court having jurisdiction." General laws of jurisdiction prescribe which courts have jurisdiction of the matters with respect to which the referenced types of orders would be rendered, making those courts the proper courts to render orders in those matters. See, for example, Sections 4 and 5, Texas Probate Code, redesignated as Sections 4 and 5 of this code, and Section 25.0003, Government Code, which provide for certain courts' jurisdiction of probate proceedings. A court may render an enforceable order with respect to a matter only if the court has jurisdiction of the matter, and an explicit statement requiring that the court rendering the order be a "proper" court "having jurisdiction" is unnecessary. For that reason, the revised law omits the quoted phrases.

Revised Law

Sec. 102.006.  CIRCUMSTANCES UNDER WHICH PARTITION OF HOMESTEAD IS AUTHORIZED. The homestead may be partitioned among the respective owners of the property in the same manner as other property held in common if:

(1)  the surviving spouse dies, sells his or her interest in the homestead, or elects to no longer use or occupy the property as a homestead; or

(2)  the court no longer permits the guardian of the minor children to use and occupy the property as a homestead. (Tex. Prob. Code, Sec. 285.)

Source Law

Sec. 285.  When the surviving spouse dies or sells his or her interest in the homestead, or elects no longer to use or occupy the same as a homestead, or when the proper court no longer permits the guardian of the minor children to use and occupy the same as a homestead, it may be partitioned among the respective owners thereof in like manner as other property held in common.

Revisor's Note

Section 285, Texas Probate Code, refers to a "proper" court no longer granting certain authority to a guardian. The revised law omits the reference to the court being "proper" for the reason stated in Revisor's Note (2) to Section 102.005.

TLC: Estates and Guardianship Code Proposed Chapters

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