What Is A Widow’s Election In Texas?

Robert Ray

contestthumbnail The Doctrine

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 accepted benefits under the will here.

An Example

An example of the widow’s election in Texas and how it can affect property rights is shown in a Texas case from the 1980’s. There, the wife gave her husband some of her property. The will also set out that she was giving him the income from his own property for his life but giving the property to her son after the death of the husband. After the wife died, the husband probated the will. He was appointed executor of the will. Later, he claimed the property in question as his own as he inherited it from his family. The wife’s son claimed that the husband made an election by probating the will, being appointed executor and receiving benefits. The court agreed and ruled that the husband’s property transferred to the wife’s son on husband’s death.

To recap, the husband had property that was his separate property and did not belong to wife. Wife gave husband’s property to her son in her will. The court held that it was the son’s property now because the husband made an election to take under the will when he filed it for probate, was appointed executor and enjoyed benefits under the will. His property thereby became the wife’s son’s property and was no longer his! 657sw2d457.

A Different Result

A different result concerning the widow’s election in Texas is shown in a 2015 case. The husband gave an investment account to his children. He stated in his will that the account was his separate property and not community property. The wife contested the characterization of the property as separate property and claimed that it was community property belonging to both husband and wife. The husband stated in his will that he was putting his wife to an election. He also stated that he was disposing of “all my property, real, personal, and mixed, including my one-half interest in the community property of myself and (my wife).” The court held that there was no election since the husband was just disposing of his property and not property of his wife. An election is present only if “the testator unequivocally attempted to dispose of [the testator’s spouse’s] community interest in the estate.” The wife claimed, and the court agreed, that husband’s devise of the investment account which he claimed as his separate property in the will could only have referred to the funds in the account that were either his separate property or his one-half of the community property. The court based its holding on the statement in the will that he was disposing of “his” property.

No Contest Clause

In the 2015 case, the children also claimed that the wife violated the in terrorem or no contest clause in the will. Since the jury found that the wife did not contest the will in good faith, the children argued that any devise in the will to the wife was void. The court disagreed. The court ruled that since the wife was just asking the court to award her the part of the community property that was her’s, her actions did not constitute a will contest and the the issue should never have been submitted to the jury.

Trust, Illusory And Otherwise

A Texas case dealing with the election issue where a husband put the wife’s share of the community estate in a trust is here. The court held that the trust was illusory and the wife could recover her have of the trust assets.

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By Robert Ray a Board Certified attorney. The foregoing information is general in nature and does not apply to every fact situation. We handle litigation involving inheritance disputes. We don’t prepare wills. We don’t file wills for probate or distribute estates except when we are contesting a will or protecting a will from a contest. We handle a select few cases on contingency. Don’t use a comment to ask a personal question about an inheritance issue because your name and comment will be public. To ask a litigation question and to protect your privacy, click the red button to the right.


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Robert Ray

Robert Ray handles inheritance disputes of all kinds. He takes cases throughout Texas.
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