What Is a Widow's Right of Election in Texas?
A widow or widower's right of election only comes into play if the deceased spouse left a will. If the decedent died without a will, or intestate, then the right of election does not apply. In those cases, the amount of the estate which goes to the surviving spouse is set by state law and varies depending on your family structure.
A surviving spouse can choose the better of two options
In cases where a spouse died with a valid will, but the will does not provide for the spouse or the provision is inadequate, the surviving spouse may elect to override the will and inherit a larger portion by claiming his or her right of election. This rule of law is often called the widow's election, but it is available to widowers, or surviving husbands, as well.
Texas law lets a surviving spouse choose one of two options: A surviving spouse may choose to take the gifts or bequests designated in the will or may choose to retain his or her ownership interests in community property, even if doing so contradicts provisions in the deceased spouse's will.
Identifying community property is the key
To fully grasp this concept requires an understanding of Texas community property rules. Under these rules, whether during life or by a will, a spouse can only legally dispose of one-half of the couple's community property assets, because the other spouse owns the other half, regardless which name appears on the title.
For example, if a father wants to leave a parcel of real estate which is community property to his son, the father may only give the son a one-half ownership interest in the parcel. This is true whether the father makes the gift during his lifetime or in his will.
The catch is that if the surviving spouse takes other gifts provided in the deceased spouse's will, she cannot also keep her one-half interest in the parcel of real estate bequeathed to the son. If the surviving spouse is offered benefits in the will while also being asked to suffer a detriment, the spouse cannot accept the benefits without also suffering the detriment.
A surviving spouse can have one or the other, but not both
The bottom line is that a surviving spouse in Texas can either take what was given to her in the will, or she can reject those bequests and retain a one-half ownership interest in the couple's community property, but she can't have it both ways. The Texas widow's election rule is an either/or option.
At Peterson Law Group, we offer comprehensive estate planning services as well as probate administration and litigation assistance. Call for an appointment with an experienced Bryan, Texas estate planning lawyer by calling 979-703-7014 or 936-337-4681, or visit us online for more information and to request a meeting.