Texas does not recognize a pretermitted (forgotten) spouse so this article has no application to Texas. Some states do recognize a pretermitted spouse and I have written about those states here. Basically, a pretermitted spouse is someone who marries a person after that person has made a will. If the will is not revised and the parties are still married on the death of the one who made the will, the surviving or pretermitted spouse will take a portion of the estate even though they are not mentioned in the will.
Elder abuse is increasing, often at the hands of those closest. In an article in the Arizona Daily Star by Patrick McNamara, which was published on their website, tucson.com, the paper reported that law enforcement is seeing an increase in elder abuse.
Reason that elder abuse is increasing
As our elderly population grows, law enforcement and prosecutors are seeing an increase in the number of incidents of exploitation and abuse against older people. According to the article, law enforcement has seen a nearly 50 percent increase in elder exploitation reports. Financial crimes are taking a toll on lives and pocketbooks reports Constance Gustke in the New York Times. Trusted caregivers – friends and relatives who offer support and guidance – are often the ones at fault. The article states that older adults are appealing – and vulnerable – targets (more…)
The doctrine of a widow’s election in Texas is based on the principle that a person may not take benefits under a will and, at the same time, set up a right or claim of his own, even if well founded, which would defeat or in any way prevent the full effect and operation of every part of the will. A beneficiary under a will is put to an election only where the will expresses the testator’s purpose to dispose of the beneficiary’s property in such clear and unequivocal language that the will is open to no other construction. Since it is presumed that a testator intends to dispose only of his own property, a beneficiary under a will is put to an election only where the will expresses the testator’s purpose to dispose of the beneficiary’s property in such clear and unequivocal language that the will is open to no other construction. I have written about a person’s ability to contest a will if he (more…)
What is a pretermitted spouse
I’ve written before about pretermitted (forgotten) children and their rights to inherit. You can read the articles here and here. Basically, a pretermitted child is one who is born after a will is executed and is not otherwise provided for by the parent. In that case, the pretermitted child would inherit a share of the parent’s estate even though he is not mentioned in the will. Some states also recognize a pretermitted wife or spouse. In that case, if a marriage takes place after a will is executed and the wife is not otherwise provided for by the husband, she takes a share of the estate even though she is not mentioned in the husband’s will. See for example, the California Probate Code Section 21610-21612. Washington state also recognizes a pretermitted spouse. No. 30995-9-III.
Pretermitted wife not recognized in Texas
Texas does not recognize a pretermitted wife, only pretermitted children. A child in Texas who is contesting a will may recover under the pretermitted child statute. A wife in a will contest in Texas will not since there is no Texas statute recognizing a pretermitted spouse.
No, says the Dallas Court of Appeals. The court stated that under Texas law, spendthrift trusts are trusts with language prohibiting the voluntary or involuntary alienation of the beneficial interest. A spendthrift trust protects the beneficiary from his creditors by expressly forbidding alienation of the beneficiary’s interest in the trust. Where it appears from the terms of the instrument creating the trust that it was the donor’s or testator’s intention to create a trust estate immune from liability for the debts of the beneficiary and to prohibit its alienation by him during the term of the trust, a spendthrift trust is created, and the intentions of the donor or testator will be enforced by the courts of this State. Although beneficial interests in trusts are generally assignable, attempts to assign such interests are invalid when they are subject to a spendthrift provision in the trust.
Based on the law of spendthrift trust, the trial court could not order the trustee to pay spousal support to the wife pending a divorce. The court noted that the trial court could order support for children from a spendthrift trust but that was based on a specific statutory provision. There was no similar statutory provision for spouses.
Copyright by Robert Ray a Texas inheritance attorney. The foregoing information is general in nature and does not apply to every fact situation. If you are concerned about inheritance laws, inheritance rights, have a family inheritance dispute, a property dispute or want information about contesting a will and need an inheritance lawyer, we can help. Please go to our main site www.texasinheritance.com and use the contact form to contact us today. We are Texas inheritance lawyers and would love to learn about your case and there is no fee for the initial consultation.
In an interesting inheritance decision out of the Corpus Christi Court of Appeals, the court was faced with a same-sex marriage question. As background, Texas has a constitutional and a statutory prohibition against same-sex marriages. While similar provisions in other states have been held to be void, the Texas provisions are still viable, at least for the time being.
In the inheritance case, a fireman married a person who was born a male. This person still had male sex organs but had been dressing and acting like a female all her life. At some time after the marriage, she had a sex change operation. The fireman died in the line of duty. The fireman’s mother filed a probate action saying that the fireman was not married at the time of his death because Texas forbids same-sex marriages. A prior wife filed similar papers on behalf of the children of the fireman. The current wife answered that she was female and that the marriage was valid. She produced evidence of gender dysphoria or gender identity disorder. Her evidence showed that she had had this issue from the time she was a young child and the state recognized her condition. The state of California, where she was born, had changed her birth certificate prior to the marriage showing that she was born a female. The trial court ruled that the marriage was void because Texas doesn’t recognize same-sex marriages. As a side note, although it is not mentioned in the decision, the fireman did not have a will. If he had a will, he could have left his property to the wife whether the marriage was void or not. Because he didn’t have a will, the issue would come down to who are the beneficiaries if a person dies intestate, e.g. without a will. His wife would be a beneficiary if he had a valid marriage.
After reviewing all the evidence and the motions the Court of Appeals reversed. The court indicated that Texas authorizes the clerk in each county to issue a marriage license to someone who proves they are male or female by a “sex change…” While the wife did not file the proper motions to have the court render a decision for her, there was enough evidence to overturn the trial court’s ruling and send the case back to the trial court to determine whether the wife was male or female. That ruling sounds strange but when you read it knowing that the wife did not file the proper motions, it is more understandable. The court had to send the case back to the trial court. There was no other way to dispose of the case. As of September 2014, the case is pending review by the Texas Supreme Court. 13-11-00490-CV,443 SW 3d 233. Compare this case to 04-99-00010-CV, a 1999 case that ruled differently.