Widows in Texas have a special option at the passing of their spouse called the widows’ election. The rule states that if the surviving spouse is entitled to a benefit under a will, but must suffer a detriment as well, the surviving spouse cannot accept the benefit without also accepting the detriment.
Take the hypothetical Smith family, comprised of spouses Chris and Taylor. Chris has passed away, leaving a will, which Taylor submits to probate. The will devises, or gives, to Taylor the spouses’ primary residence, a nice ranch-style house in a suburb. However, the will also devises the remainder of Chris’ property to Chris’ alma mater, State U, including a couple acres of grazing pasture to be set aside as a practice field for the disc golf team.
Now, because Texas is a community property state, Chris only owned half of each of the suburb and the pasture properties at death. But Chris purported to give away the entirety of those properties to the respective devisees. What is the result? The surviving spouse, Taylor, has to make a choice.
Taylor has two options: take under the will, or take under community property law.
Under the will, Taylor gets the whole house in the ‘burbs, down to every nail (the benefit) but Taylor gives up half of the pasture and half of Chris’ other property to the disc golfers of State U (the detriment). Taylor cannot get the benefit without the detriment.
However, Taylor can choose to keep the half of both properties that community property laws grant outright. The downside is that Taylor now becomes tenants in common with whoever receives the other half of that property – and Taylor might not want to be co-tenants with State U, as an alum of their rival, College Tech.
There is no hard and fast rule about which choice is better – surviving spouses should evaluate what works best for their interests when making such an election.
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Bryce Griffin is a third-year J.D. student at Baylor University School of Law, and completed his undergraduate in Philosophy and Political Science at Baylor University. He is looking forward to entering the estate planning legal field upon graduation and passing the Bar.