Dear Quentin,
My wife, 72, and I have been married for five years.
I moved into her house, which is paid off, and we split the utilities, food and taxes. She has her car and I have my truck. We live in Texas, and she has a will leaving her house, life Insurance, car and possessions to her 4 daughters.
We are legally married and all our possessions are paid off. What happens to the possession of the house, car and household items if she passes before I do? Neither of us are in such good health. I am four years younger than my wife.
Do I have any rights here at all?
Younger Man
Dear Younger,
You have a right to whatever you brought into this marriage, and whatever you purchased during your marriage. Texas is a community-property state, so anything you or your wife purchased prior to your marriage is deemed separate property.
The surviving spouse in Texas has the right to occupy the homestead for the remainder of his/her life, even if it is separate property or gifted to a third party, per State Bar of Texas. At your death, her kids would take possession of the property.
Ownership is a different issue. You have paid the utilities and property taxes. In some states, contributing to the upkeep of the property can commingle that asset — turning it from separate property into marital property. Laws vary by state.
“In Texas, community funds that are used to maintain, improve or pay the expenses of a spouse’s separate property does not give the community any ownership interest in that asset,” warns Warren & Migliaccio, a Texas law firm.
“The surviving spouse in Texas has the right to occupy the homestead for the remainder of his/her life, even if it is separate property or gifted to a third party”
Ditto, divorce. It remains her property. “But the other spouse may be reimbursed for their contributions to the equity in the house or the improvements that caused the house to increase in value,” says Powers & Kerr, a law firm in Austin.
Personal possessions are different. “If you both bring furniture and housewares into the marriage and use them interchangeably without distinction of ownership, those items have probably become community property,” says Warren & Migliaccio.
“What about engagement and wedding rings? Oftentimes these items can have substantial value. Generally speaking, anything given to you by your spouse is your separate property even if it was purchased using community money,” the firm adds.
Five years or even 15 years of marriage does not entitle you to separate property after your wife dies. She has also made sure to have a will, ensuring her children receive their inheritance, so state intestacy law will not apply here.
(If she died without a will in Texas, her spouse would receive 50% of community property and one-third of separate property. The remainder would go to her four children. You would have the right to live in the property for the rest of your life.)
And now? You don’t have to pay rent. Believe me, that’s not always the case. This man pays his wife $2,000 a month (reluctantly). One of the most empowering things you can bring to a marriage is financial independence.
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