Does a Surviving Spouse Have a Right of Election in Texas?

Under Texas' community property rules, a spouse only has testamentary power over half of the community property assets which are subject to probate. A spouse can't lawfully dispose of the surviving spouse's ownership interest in community property, by will or otherwise.

A surviving spouse may retain his or her ownership rights in community property, even if deceased spouse put terms in his will attempting to convey the property to a third person. In some cases, however, the surviving spouse may be willing to give up half ownership in certain community property in order to receive more preferred gifts set forth in the will.

Widow's election

Texas' widow's election rules provide that the surviving spouse — whether a husband or a wife — may choose whether to accept bequests provided in the will, or elect to retain ownership interest contrary to the will.

The rule is that if any devisee (the legal term for a recipient named in a will) is entitled to a benefit under a will and asked to suffer a detriment under the will, the devisee cannot accept the benefit without also suffering the detriment. In other words, the surviving spouse must choose one option or the other.

Peterson Law Group offers comprehensive estate planning services, along with probate administration and litigation assistance. Call for an appointment with an experienced Bryan, Texas probate attorney today at 979-703-7014 or 936-337-4681.