Garner v. Estate of Long, 49 S.W.3d 920 (Tex. App.—Fort Worth 2001, pet. denied).
During marriage, Husband and Wife purchased a house. Wife died first
with a will leaving Husband various items such as cash, cars, and the
right to live in the house “as long as he lives and wants to live
there.” Wife’s will also stated that the house was her separate
property. Husband filed suit to determine the marital property nature of
the house and to establish his homestead rights therein. Husband died
and his executor continued the lawsuit. The trial court determined that
the house was actually community property and that the will did not put
Husband to an election to choose between his community property rights
in the house or the cash and cars. The executor of Wife’s estate
appealed.
The appellate court affirmed. The court explained that the will did not
reflect Wife’s intent to place Husband to an election. Wife’s grant of a
life estate to Husband is actually consistent with his homestead right.
Accordingly, Wife’s will does not force Husband to elect between his
homestead rights and the bequests.
Moral: A person who wishes to create an election will should
unambiguously express that intent in the will.