Surviving Spouse Claims

In probate, a surviving spouse may have several potential claims against the decedent’s estate. These claims are typically designed to ensure that the surviving spouse is properly provided for after the decedent’s death, particularly in cases where the decedent’s will, trust, or other estate planning documents may not have adequately addressed the spouse’s rights. Below are various types of surviving spouse claims in probate: 

1) Community Property Rights

In Texas, a community property state, property acquired during the marriage is typically owned equally by both spouses, regardless of whose name is on the title. Upon the decedent’s death, the surviving spouse has a right to their half of the community property. If the decedent attempted to transfer or dispose of community property without the surviving spouse’s consent or knowledge, the surviving spouse can claim their share.

2) Right to a Family Allowance

In Texas, a surviving spouse may be entitled to a family allowance, which is a sum of money set aside from the estate to provide for the spouse’s maintenance and support during the probate process. This allowance is often designed to provide immediate financial relief while the estate is being administered, and it is generally a priority claim against the estate.

3) Homestead Rights

In Texas, the homestead rights of a surviving spouse are an important legal protection designed to ensure that the surviving spouse is provided with a place to live after the death of the other spouse. These rights can be especially significant in cases where the decedent’s estate plan (such as a will or trust) does not fully account for the surviving spouse’s needs or if the surviving spouse was not otherwise provided for. Texas homestead laws are robust and designed to protect both the surviving spouse and their family’s right to continue living in the family home. 

4) Exempt Personal Property

Texas law allows a surviving spouse to claim certain exempt personal property from the estate, which is property that is not subject to claims by creditors and is set aside for the surviving spouse’s use. This might include things like personal belongings (e.g., household goods, clothing, jewelry) and automobiles.

5) Fraud on the Community Claims

These claims involve allegations that one spouse improperly disposed of or misused community property to the detriment of the other spouse. In Texas, community property encompasses assets acquired by either spouse during the marriage (except for separate property like gifts, inheritances, or property owned before marriage). A claim of fraud on the community arises when one spouse secretly transfers, spends, or hides community assets for personal gain or to benefit someone else without the other spouse’s knowledge or consent.  Common examples include:

• Gifting significant community assets to a third party, such as a romantic partner, without the other spouse’s consent.
• Appointing a third party as a beneficiary of a community property life insurance policy or one where the policy premiums were paid for with community property.
• Creating trusts to give community property assets to third parties, including the decedent’s children.

6) Life Insurance and Retirement Benefits

If the decedent named their spouse as a beneficiary on life insurance policies, retirement accounts, or other financial instruments, the surviving spouse is entitled to receive those benefits outside the probate process. In some cases, a surviving spouse may contest the beneficiary designation if they believe it was made under duress, fraud, or undue influence.

7) Claim for Joint Tenancy Property

In most cases, property held in joint tenancy with right of survivorship passes automatically to the surviving spouse upon the decedent’s death, bypassing probate. If there is a dispute over the ownership of such property, the surviving spouse may need to assert their rights to the property.

 At Baxter-Thompson Law, we have experience and expertise in litigating surviving spouse claims.  Feel free to download Ms. Baxter-Thompson’s paper on Surviving Spouse Claims – an article she wrote and presented to attorneys across the State of Texas to educate them on these claims.