If the spouse who owns the home doesn't want the other spouse to be able to live in the house rent free for life, then the only way around that homestead right is with the signing of a marital property agreement.
Q: If a person enters a marriage owning a separate property bank account and a home (free and clear), the money is not commingled with the spouse’s funds, and the new spouse's name is never added to the house deed, do the money and house remain separate property in the event of a divorce? Or would a prenuptial agreement be required?
A: The house will remain separate property. However, if the spouse who owns the house dies, the other spouse will have the right to live in the house rent free for the remainder of that spouse's life. This is the case even if the deceased spouse gives the house to another person or several other people, such as that spouse's child or children from a prior marriage.
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The money in the bank account starts out as separate property, but any interest income will be community property.
If the interest income is left in the account, then over time the account will contain more and more community property. Under Texas law, there is a presumption that the entire account is community property, and the spouse who wants it to be classified as separate property might need to prove how much of the account is actually still separate.
The way to prevent this from happening is to have the bank sweep all of the interest income the account earns to a different account which contains the spouses' community property. That way, the separate property account never contains any community property.
If the spouse who owns the home doesn't want the other spouse to be able to live in the house rent free for life, then the only way around that homestead right is with the signing of a marital property agreement.
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Q: I recently inherited some property in Texas that has been in the family for over 150 years. All of my life I have heard there are 75 acres, and the tax statements indicate the same. However, several lessees of the property have stated they thought there was more than 75 acres. The most current survey I have is from the 1880s. I am considering having a survey done, but I am concerned about what happens if the survey shows there are say, 100 acres. Will I be responsible for paying back taxes on the additional acreage?
A: Simply learning that you inherited more than 75 acres doesn't mean you will owe more taxes. You are under no obligation to provide the appraisal district with a copy of the new survey.
You can keep the survey in your desk, or scanned on your computer, and one day if you sell the property, you may be able to make more money since you will be selling more acres.
The information in this column is intended to provide a general understanding of the law, not legal advice. Ronald Lipman of the Houston law firm Lipman & Associates is board-certified in estate planning and probate law by the Texas Board of Legal Specialization. Email questions to: stateyourcase@lipmanpc.com.
How to account for separate assets when getting married
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06.02.2024
If the spouse who owns the home doesn't want the other spouse to be able to live in the house rent free for life, then the only way around that homestead right is with the signing of a marital property agreement.
Q: If a person enters a marriage owning a separate property bank account and a home (free and clear), the money is not commingled with the spouse’s funds, and the new spouse's name is never added to the house deed, do the money and house remain separate property in the event of a divorce? Or would a prenuptial agreement be required?
A: The house will remain separate property. However, if the spouse who owns the house dies, the other spouse will have the right to live in the house rent free for the remainder of that spouse's life. This is the case even if the deceased spouse gives the house to another person or several........
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