The term “Incapacitated” is used to describe a state of being in which you don’t have the capacity, or ability, to accomplish anything. This state of being is usually due to injury or illness, and is often used in the same way as “disabled.”

However, a person can have a disability without being incapacitated. In Texas, legal incapacity is defined as a person who, due to a physical or mental condition, is substantially unable to provide their own basic needs such as food, clothing, and shelter. Further, they are substantially unable to care for their own physical health, as well as manage their personal health.

Once a person is deemed legally incapacitated in the state of Texas, a guardianship is almost always sought after. The two kinds of guardianship are guardian of the person, which is control over the incapacitated person’s personal matters, and guardian of the estate, which is control over the ward’s property and finances.

It is possible that one single person can serve as both types of guardian. Additionally, incapacitation can be total or partial, and that designation determines the extent of guardianship.

My Spouse Has Become Incapacitated and I Want to Sell Our Home

Texas is a community property law state. In community property states everything the couple obtains together during their marriage is considered property of the community. Therefore, Texas courts will assume that any property owned by the couple is community property.

Property that is not considered community property (separate property) includes property acquired before the marriage individually, property that was acquired by gift or inheritance, or personal injury damages attributable to the physical injury. If the home is to be sold, both spouses must agree to this and execute the deed, even if the title to the property is only in the name of one spouse.

Further, Texas does not allow an incapacitated person to enter into a contract, and, thus, they are unable to sell a home. Thus, Texas had to devise a way of dealing with the dilemma of allowing a spouse to sell their community property classified home, without one spouse signing off on the transaction.

Incapacitation is an exception to this rule. If the house is deemed community property (belonging to the couple rather than an individual), the non-incapacitated spouse is allowed to file a petition to the court. This petition asks the court for an order permitting the spouse to sell the house and property, without the incapacitated spouse’s permission.

The court will NOT issue an order if the non-incapacitated spouse is requesting to sell the separate property of the incapacitated spouse. If the incapacitated spouse has any separate property, a guardian of the estate must be appointed, but the other spouse still has the right to manage the community estate.

As noted above, separate property can be defined as property owned solely by one spouse, such as property acquired before the relationship began, property acquired under a trust, or property that the partners declared separate under an agreement before the other spouse became incapacitated.

How Soon Can I File the Petition with the Court?

To file for the petition asking for an order permitting the spouse to sell the house and property without the permission of the incapacitated spouse, certain conditions in particular must be met:

  • At least sixty days must pass after the incapacitated spouse was declared legally incapacitated; and
  • There must be a filed notice and a hearing.

Additionally, the court may require an attorney to represent the incapacitated spouse, and they may put restrictions or conditions on the non-incapacitated spouse. This could include a directive pertaining to the disbursements of the proceeds of the sale. The timeline and conditions of this petition are governed by The Texas Family Code.

The exception to this is if the incapacitated spouse has been declared incompetent by the court. The other spouse has an automatic right to sell the house and property in that case. Importantly, if one spouse is declared judicially incompetent by a court of law, the other spouse automatically becomes the community administrator with respect to the community management property under the Texas Probate Code.

Additionally, the court may order an inventory or accounting to be filed by the other spouse or remove the other spouse as the community administrator and appoint a guardian in certain circumstances.

Should I Consult an Attorney If I Want to Sell My Incapacitated Spouse’s Land?

It may be hard to think about the legal consequences of a spouse becoming incapacitated, especially when the unfortunate event occurs. However, real estate law and estate planning law are already very complicated matters without incapacitation further complicating the situation. An incapacitated person and their spouse are subjected to both of these areas of law.

A qualified, knowledgeable, and professional Texas family law attorney will help ease some of the burden now placed on you, and help you decide the best course of action that will benefit both you and your now incapacitated spouse. They will also represent you in court and ensure the proceedings and legal sale of your home go smoothly.