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