Texas defines an adult incapacitated person as being an "individual who, because of a physical or mental condition is substantially unable to provide food, clothing, or shelter for himself or herself, to care for the individual’s own physical health, or to manage the individual’s own financial affairs."

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

Texas does not permit an incapacitated person to enter into a contract, which means that they are unable to sell a home. Texas is a community property state which means several things, one being that if the home is to be sold, both spouses must agree and execute the deed. This rule applies even if the title to the property is only in the name of one spouse.

There are many exceptions to this rule including incapacitation. If the house is deemed community property, Texas allows a spouse to file a petition to the court. The petition is basically asking the court for an order that permits the spouse to sell the house and property without the incapacitated spouse’s permission. However, the court will not issue the order if the property is the separate property of the incapacitated spouse.

How Soon Can I File a Petition to the Court?

The Texas Family Code governs the timeline and conditions of the petition. The most pertinent sections provide that:

  • At least 60 day must pass after the incapacitated spouse was medically diagnosed.
  • There must be a notice and a hearing.
  • The court may require an attorney to represent the incapacitated spouse.
  • The court may put restrictions and/or conditions on the other spouse, including a directive pertaining to the disbursements of the proceeds of the sale.

However, if the incapacitated person had been judicially declared incompetent (i.e. by the court), the requirements above do not apply and the other spouse has an automatic right to sell the home.

Should I Consult an Attorney?

A spouse becoming incapacitated is a very emotional experience for everyone involved. The legal consequences of this unfortunate event may be the furthest thing from your mind. However, an incapacitated person and their spouse are subject to the complicated areas of both real estate and estate planning law. An experienced Texas family law attorney can help alleviate some of the burden and help you decide the best course of action that will benefit both you and your spouse.