Mangrum v. Conrad, 185 S.W.3d 602 (Tex. App.—Dallas 2006, pet. denied).


Conditional Gift


Husband died survived by Wife and Children from a prior marriage. Husband’s will provided a significant gift to Wife which was conditioned on her waiving her homestead rights and any other rights she may have as a surviving spouse. If she failed to waive these rights, Husband gave this property to Children instead. A dispute arose regarding whether Wife had waived her rights because she lived in the home for several years after Husband’s death. The trial court granted Wife’s request for a summary judgment that she had not waived her rights by remaining in the home and the appellate court agreed.

The court recognized that Wife remained in the home for many years, changed the utilities into her name, planted flowers, and did other things inconsistent with a waiver of her right to the home. However, Husband’s will conditioned Wife’s gift on her expressly waiving her rights which she did in a written document filed with the court. There was also other evidence that Wife had told others that she was electing to take under the will and waive any rights she may have as a surviving spouse. The court determined that the election was timely because the will did not specify a time and Wife had arguably valid reasons for remaining on the property after Husband died. This evidence was not controverted and thus the trial court’s grant of a summary judgment was proper.

Moral: A testator who desires to make this type of conditional gift should state a time by which the election must be made.