In re Estate of Rhea, 257 S.W.3d 787 (Tex. App.—Fort Worth 2008, no pet.).

Estate Administration

Exempt Property


After Wife died, Executors removed virtually all of the personal property from the marital home including their bed, bedding, towels, dishes, cooking utensils, the refrigerator, toilet paper, boxes of tissue, and used bars of soap. Thereafter, Husband requested the return of some of the personal property as exempt under Probate Code § 271 or $5,000 in lieu thereof under § 273. The trial court granted Husband’s request and also allowed him to keep Wife’s wedding ring for the rest of his life as part of the exempt property. Executors appealed stating that Husband could not get both the allowance and keep the ring as exempt property.

The appellate court rejected Executor’s argument. The court explained that if any exempt property is not found among the decedent’s effects, the trial court is required to make a reasonable allowance in lieu thereof not exceeding $5,000. “In other words, the trial court must make an allowance for those exempt items that it cannot set aide because there are not on hand. If some exempt items are on hand, it must set those aside for the surviving spouse and award an allowance in lieu of those exempt items that are not on hand.” Rhea at 792.

With regard to the wedding ring, the court recognized when an estate is solvent as in this case, the exempt personal property passes to the rightful heirs or beneficiaries when the administration terminates. Probate Code § 278. Thus, the court lacked authority to grant Husband a life estate in the ring. Husband may retain the ring until the estate is closed. (Note that Husband also claimed ownership to the ring as community property but the trial court did not rule on the ring’s ownership. Thus the appellate court declined to rule on this issue.)

Moral: A court may award both exempt personal property and, if the value of this property does not reach the monetary limits, an allowance in lieu thereof up to $5,000.


Estate Administration

Family Allowance


The lower court granted Husband a family allowance of $20,000 after Wife’s death under Probate Code § 286. The executors of Wife’s estate appealed claiming that Husband had separate property sufficient for his own support and thus was not entitled to a family allowance.

The appellate court affirmed. The court explained that the family allowance is determined by considering “the whole condition of the estate during the first year after the spouse’s death, the necessities of the surviving spouse, and the circumstances to which he or she has been accustomed.” Rhea at 791. In this case, Wife’s estate was valued at over $800,000 and the executors had removed virtually all personal property from the marital home, much of which was necessary for everyday life such as a bed, bedding, furniture, dishes, and the refrigerator. Husband’s income was expected to exceed his expenses by $1,136 per month but this difference would not be enough to replace the removed items to bring him back to the circumstances he had in the year before Wife’s death.

Moral: The family allowance is available not just to provide necessities but to provide the standard of living to which the surviving spouse was accustomed while both spouses were alive.