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Determining if divorce impacts a probate homestead

It has been our experience here at The Law Office of Roland R. Esparza that marriage is one of the events that prompts many in San Antonio to begin to consider estate planning. Unfortunately, the same consideration is not always given if and when couples divorce. You may have happily created a will, trust, or other estate planning articles with your new spouse shortly after you married, yet failed to consider the implications of those same documents when you separated. If you never remarry, then the issue of whether or not you ever updated your will may never be relevant. However, if you do marry again, then failing to change your will could potentially cause problems between your current and former spouse upon your death.

One such issue that may arise is the ownership of your home. For example, you may have bequeathed ownership of the home to your former spouse in your will. If you die, does that mean that your current spouse and/or children are required to forfeit ownership and use of the house to him or her?

Fortunately, Texas state law accounts for the potential for such an oversight. Chapter 102 of the Texas Estates Code outlines how ownership of a probate homestead is determined. It says that your home may not be portioned to any beneficiaries you name in your estate planning articles while your surviving spouse is still alive, or the guardian of your children maintains the right to use the house under a court order. Only in the event of either party choosing to leave the home will it then be subject to estate administration.

You can find more information on estate planning considerations following divorce by continuing to explore our site. 

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