A surviving spouse has the absolute right to claim a homestead right to occupy and live rent free in the primary residence of the decedent. The decedent must own the property in his or her name or in a revocable trust during his or her life. The statute states as follows:
▸ 58 OS §311 “Upon the death of either husband or wife, the survivor may continue to possess and occupy the whole homestead, which shall not in any event be subject to administration proceedings, except as in this title provided, until it is otherwise disposed of according to law . . . .”However it is possible for the surviving spouse to abandon his or her homestead. It is abandoned simply by discontinuing to live there as the primary residence. Temporary absence is usually not considered an abandonment.
▸ WAIVER OR ABANDONMENT OF HOMESTEAD. Possible to waive or abandon right to occupy homestead. Meyer v. Sec. Nat. Bank of Norman, 1955 OK 374, 294 P.2d 572The surviving spouse who occupies the homestead must not commit waste, must pay the real estate taxes and keep the property insured.
Property owned in joint tenancy when the surviving spouse is not on the deed, is not normally subject to a homestead right. A spouse should be careful about signing deeds concerning the residence and other property and not do so unless an experienced attorney is first consulted to advice concerning the effect that signing a deed would have..
Brent D. Coldiron is an expert in trusts, revocable trusts, irrevocable trusts, wills, and probate law. You can call Brent at (405) 478-5655 or 737-2244. His offices are located at 1800 East Memorial Road, Suite 106, Oklahoma City and 2801 Parklawn Drive, Suite 503, Midwest City. Brent has over 42 years of experience. He knows what to do!