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Can a surviving spouse lose their homestead rights by renting out the property in Texas?

Can a surviving spouse lose their homestead rights by renting out the property in Texas?

In a particularly poignant case, a client found herself in a challenging situation following the death of her spouse. As part of a blended family, she was unaware that her husband's interest in their property had passed to his children from a previous relationship. This detail came to light years later when, due to her advancing age and health concerns, she decided to move to an assisted living facility for better care and support.

However, this decision led to unexpected legal complications. The children initiated a lawsuit to partition the property, arguing that by moving out, she had effectively abandoned her homestead rights. The case hinged on the critical question of whether her departure constituted an intention to leave the property, thereby relinquishing her homestead rights permanently.

The court's deliberation focused on the concept of abandonment, which in Texas requires clear evidence of a homeowner's intention not to return to their homestead. In this case, the court found that her move to an assisted living facility, driven by her inability to live independently, indicated a lack of intention to return to the homestead. It wasn't merely a choice to live elsewhere; it was a necessity borne out of health needs, which ultimately led to the court's decision that she had abandoned her homestead rights.

As a result, the property was ordered to be sold, a decision that starkly illustrates the complex interplay between homestead rights, the intentions of the homeowner, and the legal interpretations of abandonment. This case serves as a cautionary tale for surviving spouses, especially in blended families, highlighting the importance of understanding the implications of moving from a homestead property and how such actions can affect their rights and interests.

Understanding Homestead Rights and the Impact of Renting on Surviving Spouses.

Can a surviving spouse lose their homestead rights by renting out the property in Texas? Yes. However, it is not as simple as renting out the property. Homestead rights are a cornerstone of Texas property law, offering protection to homeowners by safeguarding their primary residence from certain types of creditors and providing surviving spouses with the right to occupy the homestead after their partner's death. However, these rights come with specific conditions, especially when it comes to renting the property. For surviving spouses, navigating these rules is crucial to maintaining their homestead rights and avoiding unintentional abandonment of the property.

The Essence of Homestead Protection

Homestead protection in Texas is designed to ensure that a surviving spouse can continue living in the family home without fear of displacement. This protection remains effective until the spouse either abandons the property, passes away, or voluntarily transfers (alienates) the property. Evidence of abandonment must be clear and unmistakable, demonstrating a total and intentional relinquishment of the property without plans to return and reclaim the homestead exemption.

Renting and Homestead Rights: A Delicate Balance

A common misconception is that renting out a homestead property automatically results in the loss of homestead rights. However, the law is more nuanced. The act of renting does not, in itself, forfeit a homesteader's right to use and occupy. Indeed, the Texas legal framework permits the leasing of homestead property under certain conditions without constituting abandonment.

Intention to Return: The Key Factor

The critical element in maintaining homestead rights while renting the property is the intention of the homesteader to return. Physical absence from the property does not equate to abandonment, provided there's a clear intention to return and reoccupy the premises as the primary residence. This intention can be demonstrated through various means, such as keeping personal belongings on the property, maintaining utility services, or other actions indicating plans to return.

Legal Implications of Establishing a New Homestead

Legally, establishing a new homestead is considered abandonment of the former, as it reflects a clear intention to make another property the primary residence. Courts look for definitive acts, such as designating a new property as a homestead for tax purposes or moving to and occupying another residence, to determine whether the old homestead has been abandoned.

Protecting Your Rights: Precautions and Considerations

For surviving spouses or homesteaders considering renting out their property, it's essential to navigate these legal waters carefully to avoid unintended consequences. Consulting with a legal professional can provide guidance tailored to individual circumstances, ensuring that actions like renting out a homestead do not inadvertently lead to the loss of valuable rights.

Moreover, understanding the nuances of pre-marital agreements and their potential to waive homestead rights is critical. Clear and convincing evidence of informed consent is required to waive these protections, emphasizing the importance of legal advice in these situations.


Texas homestead laws offer robust protection for homeowners and surviving spouses, but they also require a careful approach to renting and property management. By understanding the legal landscape and taking informed actions, homesteaders can protect their rights and ensure their home remains a sanctuary for years to come.

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