Houston Estate Planning and Elder Law Attorney Blog
When a married person dies in Texas, the surviving spouse has a set of legal protections that exist no matter what the will says or who inherits the property. These rights let a widow or widower stay in the family home, keep essential personal property, and draw an allowance from the estate for support during the first hard year. They are some of the strongest protections in Texas probate law, and they often surprise the people they protect.
McCulloch & Miller, PLLC helps surviving spouses and families assert these rights during the Texas probate process, in Dallas and across the state. The firm handles estate administrations on a flat fee basis for many matters and has guided Texas families through them for over 35 years.
What rights does a surviving spouse have in Texas?
A surviving spouse in Texas is entitled to three core protections during probate, and they apply on top of whatever the spouse inherits under the will or by intestacy. They exist to keep a grieving spouse from being left without a home or support while the estate is sorted out.
The three protections are:
- The homestead right, which lets the surviving spouse live in the family home for the rest of their life.
- The exempt property set-aside, which reserves the home and certain personal property for the family, largely beyond the reach of creditors.
- The family allowance, a sum of money the court can order from the estate to support the surviving spouse for a year.
These protections are set by statute, not by the will, which means a spouse generally cannot be written out of them. McCulloch & Miller, PLLC has helped surviving spouses across Texas claim what the law reserves for them, and the firm’s first step is usually to make sure none of these rights gets overlooked in the rush of administration.
Can the heirs force a surviving spouse to sell the house?
No. Under Texas Estates Code § 102.005, a surviving spouse has the right to live in the homestead for the rest of their life, and the deceased spouse’s heirs cannot force a sale or move in while the spouse uses the property as a home. Texas courts treat this homestead right as the equivalent of a life estate.
This protection holds even in situations that surprise families. If the home was the deceased spouse’s separate property and the will left it to children from an earlier marriage, those children inherit the title, but they still cannot evict the surviving spouse or compel a partition. The surviving spouse keeps the right to occupy the home and, in turn, is responsible for upkeep, property taxes, and mortgage interest during that time. For blended families across Dallas, Irving, Garland, and the surrounding communities, this is one of the most important and least understood features of Texas probate.
What is the exempt property set-aside?
The exempt property set-aside reserves certain assets for the surviving spouse and children so that the family is not stripped of its home and basic possessions to pay the estate’s debts. Under Texas Estates Code § 353.051, after the estate’s inventory is approved, the homestead and the personal property exempt under Texas Property Code § 42.002 are set aside for the family’s use.
That exempt personal property can include home furnishings, a vehicle, tools of the deceased person’s trade, and similar items, up to $100,000 in value for a family. Set-aside property passes largely free of the claims of general creditors, which can matter a great deal when an estate is short on cash. In an independent administration, the executor sets the property aside on request; in a dependent administration, the court does it on application. If the estate turns out to be insolvent, the family generally keeps the set-aside property outright.
What is the family allowance in Texas probate?
The family allowance is money the probate court orders paid from the estate to support the surviving spouse, minor children, and any adult incapacitated children for one year after the death. Texas Estates Code § 353.101 sets it at an amount sufficient for a year’s maintenance, measured from the date of death.
There is no fixed dollar cap; the person requesting it has to justify the amount, and the court can reduce or deny it if the spouse or child already has enough separate property to live on for the year. The family allowance also comes ahead of most claims against the estate, paid before general creditors and behind only funeral expenses and the costs of the decedent’s last illness. Because these protections are claimed during administration rather than handed out automatically, working with a probate process in Texas attorney early helps make sure a surviving spouse actually receives them.
How do these protections work in Dallas County?
In Dallas County, estates are administered through the county’s three statutory probate courts, which sit in the George Allen Courts Building downtown. How a surviving spouse claims these protections depends on the type of administration.
In an independent administration, the executor is responsible for setting aside exempt property when the surviving spouse requests it, and the family allowance is requested through the court. In a dependent administration, which the Dallas County Probate Courts supervise more closely, the spouse applies and the court orders the set-aside and allowance. A will can shape how some of these issues play out, especially in blended families, which is one reason thoughtful estate planning matters. McCulloch & Miller, PLLC represents surviving spouses and executors in Dallas County and throughout Texas, making sure these protections are claimed correctly and on time.
Frequently asked questions about surviving spouse rights in Texas
Can a surviving spouse be forced out of the home in Texas? No. Under Texas Estates Code Section 102.005, the surviving spouse has the right to occupy the homestead for life, and the deceased spouse’s heirs cannot force a sale or move in while the spouse uses it as a home, even if the home was separate property left to someone else.
What is the family allowance in Texas? The family allowance is a sum the probate court orders from the estate to support the surviving spouse, minor children, and adult incapacitated children for one year after the death. There is no fixed limit, but it can be reduced if the person has adequate separate property.
Do surviving spouse protections apply if there is a will? Yes. The homestead right, the exempt property set-aside, and the family allowance are set by statute and generally apply regardless of what the will says. A will controls who inherits, but it does not erase these protections.
Talk to a Texas probate attorney about surviving spouse rights
Losing a spouse is hard enough without worrying about whether you can stay in your home or cover the next year’s expenses. Texas law gives surviving spouses real protection, but those protections often have to be claimed during probate, not granted automatically. The attorneys at McCulloch & Miller, PLLC help surviving spouses and families in Dallas and across Texas secure the homestead right, the exempt property set-aside, and the family allowance. Attorney Ryan Cook handles flat fee and hourly probate matters, and the firm has guided Texas families through estate administration for over 35 years.
Call (713) 333-8900 or request a consultation to talk through your situation. Flat fees are available on many probate matters.