Full question:
My husband left me nothing in his will. He passed away after executing the will in somebody else’s favor. He even made provision to dispose our joint properties in his will. Can I claim a share in any of those properties?
- Category: Wills and Estates
- Subcategory: Elective Share of Estate
- Date:
- State: Texas
Answer:
Yes, you may claim a share under the doctrine of election. Generally, in Texas there is no right of election against the Will because Texas is a community property state. However, a spouse cannot legally dispose of the surviving spouse’s ownership interest in community property, by will or otherwise. Here, since your deceased husband has attempted to dispose of your share of community property through his will, you can elect whether to take under the provision made in your deceased husband’s Will regarding your community property or you can retain your interest in the community property. However, this election must be made on or before the probate of the Will.You can have a look at the relevant law in this regard below:
Tex. Fam. Code § 3.002.
Community Property.
Community property consists of the property, other than separate property, acquired by either spouse during marriage.
Tex. Fam. Code § 3.003.
Presumption of Community Property.
(a) Property possessed by either spouse during or on dissolution of marriage is presumed to be community property.
(b) The degree of proof necessary to establish that property is separate property is clear and convincing evidence.
Tex. Fam. Code Ann. § 3.102
3.102. Managing Community Property
(a) During marriage, each spouse has the sole management, control, and disposition of the community property that the spouse would have owned if single, including:
(1) personal earnings;
(2) revenue from separate property;
(3) recoveries for personal injuries; and
(4) the increase and mutations of, and the revenue from, all property subject to the spouse's sole management, control, and disposition.
(b) If community property subject to the sole management, control, and disposition of one spouse is mixed or combined with community property subject to the sole management, control, and disposition of the other spouse, then the mixed or combined community property is subject to the joint management, control, and disposition of the spouses, unless the spouses provide otherwise by power of attorney in writing or other agreement.
(c) Except as provided by Subsection (a), community property is subject to the joint management, control, and disposition of the spouses unless the spouses provide otherwise by power of attorney in writing or other agreement.
This content is for informational purposes only and is not legal advice. Legal statutes mentioned reflect the law at the time the content was written and may no longer be current. Always verify the latest version of the law before relying on it.
