Wills

Election Will

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.



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