The Texas Homestead and Transferring Title

The Texas Homestead and Transferring Title

Texas law protects an individual or family homestead against forced sale to pay debts of general creditors.  A homestead is generally defined as real property owned by the individual or family where the individual or family resides.  A family homestead may be the separate property of one spouse or community property of both spouses, and a family may have only one homestead under Texas law.  Although property may be the separate property of one spouse, either because it was purchased as or with separate property or was agreed to be separate property by both spouses, the status of property as a homestead brings provisions from the Texas Family Code and Texas Estates Code into play.

The Texas Family Code Section 5.001 requires, with limited exception, that both spouses join in the sale, conveyance or encumbrance of homestead property, regardless of whether the property is the separate property of one spouse.  This means that, even if you inherited your bungalow in the Heights or bought it while you were single, the Title Company will require your spouse to execute any Deed to sell the property, or Deed of Trust if you refinance the existing mortgage or take out a Home Equity loan.  Failure of both spouses to sign the Deed or Deed of Trust means the conveyance was not complete and subjects the Title Insurance company to future claims against the title policy(ies) issued.

Likewise, several sections of the Texas Estates Code are applicable to homestead property.  Surviving spouses and minor children of a deceased person have the right to occupy homestead property after the death of the deceased, even if the deceased had a will that bequeathed the property to someone else.  For example, if a property owner remarries late in life and executes a will leaving his home to his children, the status of the property as homestead gives the new spouse the right to occupy the homestead for the remainder of his or her life.  A Deed from the Executor to the children will not extinguish the surviving spouse’s right to occupy the property, and a Title Company will require the surviving spouse to join in any sale, conveyance or encumbrance of the homestead property.

If you are selling or borrowing against your homestead and would like to use a knowledgeable title company conveniently located in the Heights, please give us a call.  Fidelity National Title, 1512 Heights Blvd., Houston, TX 77008 (713) 529-8800.