Estate Administration


Determination of Heirship

In re Estate of Loveless, 64 S.W.3d 564 (Tex. App.—Texarkana 2001, no pet.).


Although neither party raised the issue of the finality of the lower court’s judgment, the appellate court provided a detailed analysis of whether it had the ability to consider the appeal. The court reviewed the case under the test set forth in Crowson v. Wakeham, 897 S.W.2d 779, 780 (Tex. 1995), which provides that an order in a probate case is final for appellate purposes when (1) a statute declares that a specified phase of the probate proceedings are final and appealable, (2) the order disposes of all issues in the phase of the proceeding for which it was brought, or (3) a particular order is made final by a severance order meeting the usual severance criteria.

Although Probate Code § 55(a) provides that a determination of heirship is a final and appealable judgment, the heirship determination in this case was not final because it did not contain all of the elements required by Probate Code § 54. Although the trial court order appears interlocutory because the pleadings raise issues not disposed of in the order, the court held that the action meets the requirements for severance and accordingly severed the action in the interest of judicial efficiency. Accordingly, the appellate court had jurisdiction to hear the appeal.

Moral: A party appealing a judgment should clearly indicate to the appellate court the reason why the party believes the court has jurisdiction to hear the appeal. As a matter of course, this issue should be addressed in the appellate brief.


Intestate Succession

Spousal Determination

In re Estate of Loveless, 64 S.W.3d 564 (Tex. App.—Texarkana 2001, no pet.).


After Intestate’s death, two women claimed to be Intestate’s spouse. Rosa claimed to be married to Intestate while Wanda asserted that Intestate had divorced Rosa and married her. Wanda moved for summary judgment that she was Intestate’s spouse and presented evidence such a divorce decree, marriage certificate, pleadings in which Intestate referred to Rosa as his ex-spouse, and income tax returns. To counter this evidence, Rosa produced a Honduran marriage certificate showing that Intestate remarried Rosa four months after they were originally divorced. The court granted Wanda’s motion and Rosa appealed.

The appellate court reversed because Rosa presented evidence sufficient to raise a genuine issue of material fact as to whether she had remarried Intestate which would have made Wanda’s marriage invalid. Rosa had a marriage certificate dated after their divorce and there was no evidence showing that Rosa and Intestate were subsequently re-divorced. Wanda did not produce evidence to show as a matter of law that Rosa’s remarriage was invalid or that they were divorced prior to Wanda and Intestate’s marriage. In addition, the court determined that Rosa was not equitably or judicial estopped from claiming to have remarried Intestate even though Rosa had sued to enforce the divorce decree after allegedly remarrying Intestate and did not object when her attorney referred to Intestate has her ex-husband.

Moral: Summary judgment on the status of a marriage will be difficult to obtain if there is some evidence that the decedent was married to another individual.