Estate of Tillotson, No. 05-20-00258-CV, 2021 WL 1034842 (Tex. App. – Dallas Mar. 18, 2021, no pet. h.).

Estate Administration

Partition of Community Property

After Wife died intestate, the court appointed Wife’s daughter from a previous marriage as the administratrix. She obtained a court order requiring Husband to turn over Wife’s share of the community property. Husband objected.

The court rejected Husband’s claim that only he may request a partition of the community property. The court studied Estates Code § 360.254(a) which authorizes the surviving spouse to apply to the court for a partition of the community property. However, this section does not preclude the administratrix from asking for a partition, especially because none of Wife’s community property passes by intestacy to Husband.

The court also rejected Husband’s claim that he is entitled to retain possession and control of the community property which was under his sole management under Estates Code § 453.009. The court examined the statute and held it expressly applies only when no administration is pending.

Moral:  The surviving spouse of an intestate spouse who has at least one child from another partner will have a difficult time preventing a partition of the community property, even the surviving spouse’s sole management community, so that the descendants of the deceased spouse can obtain their shares.