Article XVI, Section 52 of the Texas Constitution

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Adopted February 15, 1876:

On the death of the husband or wife, or both, the homestead shall descend and vest in like manner as other real property of the deceased, and shall be governed by the same laws of descent and distribution, but it shall not be partitioned among the heirs of the deceased during the lifetime of the surviving husband or wife, or so long as the survivor may elect to use or occupy the same as a homestead, or so long as the guardian of the minor children of the deceased may be permitted, under the order of the proper court having the jurisdiction, to use and occupy the same.

Editor Comments

Note that this section must be read together with Article XVI, Section 51. That section defines the scope of the "homestead."

Attorney Steve Smith

Recent Decisions


Historic Decisions

  • Williams v. Williams, 569 S.W.2d 867, 869 (Tex. 1978) (citations and footnote omitted) ("Article XVI, section 52 of the Texas Constitution provides that the homestead . . . . This is sometimes referred to as the probate homestead. This homestead right of the survivor has been held to be one in the nature of a legal life estate or life estate created by operation of law. The Probate Code requires that the probate homestead and certain exempt personal property be set aside to the surviving spouse. These rights are provided by law for the protection of the family and to secure a home for the surviving spouse. Therefore, we must decide whether these rights may be waived by a premarital agreement.")
  • Rancho Oil Co. v. Powell, 175 S.W.2d 960, 963 (Tex. 1943) (citation omitted) ("The exemption of the homestead to Ida Powell was not merely during her widowhood, but so long as she might elect to 'use or occupy the same as the homestead.' It is not required of her that she both use and occupy, but only that she either use or occupy. . . . This Court recently stated that '* * * beginning as early as 1857, in an opinion by Chief Justice Hemphill in Gouhenant v. Cockrell, [], our courts have held that 'it must be undeniably clear and beyond almost the shadow, at least (of) all reasonable ground of dispute, that there has been a total abandonment with an intention not to return and claim the exemption.'")
  • Thompson v. Kay, 77 S.W.2d 201, 214 (Tex. 1934) ("The Constitution plainly specifies the very circumstances under which a decedent's homestead may not be partitioned among the heirs, and no circumstance is there specified to warrant the claim of an unmarried daughter remaining in the home as a member of decedent's family to defeat partition when sought by another heir. By necessary inference, such unmarried daughter, like all other adults, except a surviving spouse, is excluded from the right to defeat the partition at the instance of another heir. . . . The Legislature has no power to add unmarried daughters to the beneficiaries of the partition clause of section 52. It has not attempted to do so.")
  • Hall v. Fields, 17 S.W. 82, 86 (Tex. 1891) ("There is nothing left for the court below to determine. Under the facts of this case, it was the duty of the court to set apart the homestead in its entirety to the minors for their use and occupation with their guardian. We know of no law which would authorize the setting apart of a portion of the homestead, and do not so construe the constitution. It is treated as an entirety, and is not subject to partition 'so long as the guardian . . . .' How long she may be permitted to do this is a question for determination hereafter by the court, on proper application made to it, showing that the reason for such use and occupation no longer exists, and whenever a proper case may arise.")

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