Before proceeding, please review the  legal disclaimer.

When a Spouse Dies, Who Gets the House in Texas?

When a spouse passes away, one of the most pressing questions for the surviving partner is: Who gets the house? In Texas, the answer depends on a variety of legal factors—including whether the deceased had a will, how the property was titled, and whether the couple had children.

This guide explains how Texas inheritance laws affect homeownership after the death of a spouse and what surviving spouses should know to protect their rights.

Texas Is a Community Property State

Texas is one of nine community property states in the U.S. This means that, in general, assets acquired during the marriage (like a home) are considered equally owned by both spouses, regardless of whose name is on the title.

However, property acquired before the marriage or through inheritance or gifts is typically considered separate property—unless it was commingled or converted.

✅ Key Terms:

• Community Property: Assets acquired during the marriage
• Separate Property: Assets acquired before the marriage or by gift/inheritance

If There Is a Valid Will

If the deceased spouse left a valid will, the terms of that will govern who inherits the house. The home may be:

• Left entirely to the surviving spouse
• Divided between the spouse and children
• Placed in a trust for family members

Even if the will leaves the house to someone else, Texas law gives surviving spouses certain homestead protections, allowing them to stay in the home.

✅ Texas Homestead Rule: A surviving spouse can remain in the marital home for life, even if the home is inherited by someone else—provided it was their primary residence.

If There Is No Will (Dying Intestate)

When a spouse dies without a will in Texas, the estate is divided based on intestate succession laws.

Scenario 1: Married With No Children

• Surviving spouse inherits all community property
• Surviving spouse also inherits all separate personal property
• Separate real estate (e.g., land) is divided among surviving parents or siblings and the surviving spouse

Scenario 2: Married With Children (From the Same Marriage)

• Surviving spouse keeps all community property
• Children inherit deceased’s separate property (real estate or personal items)

Scenario 3: Married With Children From Another Relationship

• Deceased spouse’s share of community property is split equally among their children
• Surviving spouse retains their half of community property but does not automatically inherit the house

📌 Important: If the house was community property and the deceased had children from a previous marriage, the surviving spouse may still be able to live in the home, but full ownership goes to the children.

What If the House Was Only in the Deceased Spouse’s Name?

Even if the home was titled solely in the deceased spouse’s name, it may still be considered community property if it was purchased during the marriage.

A title does not always reflect ownership under Texas law. The source of the funds used to buy the home matters.

✅ Example:

• John and Lisa bought a house during their marriage.
• The deed is in John’s name only.
• Because it was purchased during the marriage, it’s community property.

If John dies, Lisa has a right to her half and may also inherit some or all of John’s half, depending on his will or heirs.

The Role of the Homestead Exemption

Texas law offers strong protection to surviving spouses through the Texas homestead exemption:

• The surviving spouse can stay in the home for life
• No one—including children or stepchildren—can force the surviving spouse to leave
• Creditors cannot force the sale of a homestead to satisfy most debts

This protection applies even if the house is inherited by someone else.

Community vs. Separate Property: Real-World Scenarios

Case 1: No Will, House Is Community Property

• John and Mary own a home acquired during marriage
• John dies without a will and has no children from another relationship ➡️ Mary inherits 100% of the home

Case 2: No Will, Children from Prior Relationship

• Same as above, but John has kids from a previous marriage ➡️ Mary keeps her half, and John’s half is split among his children

Case 3: House Is Separate Property

• John bought the house before marriage ➡️ Mary may receive a life estate in the home, but ownership passes to heirs

Probate and the Transfer of Title

Even if you inherit the home, title must be updated. This is typically done through:

• Probate court (if there’s a will or estate)
• Affidavit of Heirship (for small estates or clear family structures)
• Survivorship agreement (if the deed includes survivorship rights)

Failure to transfer the title can cause legal issues later.

✅ Tip: Hire a probate attorney to help with deeds, filings, and court procedures.

How to Protect Your Rights as a Surviving Spouse

• Make sure your name is on the deed as joint owner with right of survivorship
• Encourage your spouse to create a valid will
• Use community property agreements to clarify ownership
• Document all real estate purchases and marital assets
• Consult with an estate attorney for customized planning

Conclusion

In Texas, the question of who gets the house when a spouse dies depends on a variety of legal factors, including wills, marital property classification, and homestead laws. While community property rules often favor the surviving spouse, blended families and intestate succession can complicate matters.

If you’ve recently lost a spouse or want to plan ahead, The Lange Firm can guide you through estate planning and probate procedures to ensure your home and legacy are protected.