In re Estate of Wetzel, No. 05-20-01104-CV, 2022 WL 1183294 (Tex. App.—Dallas Apr. 21, 2022, no pet. h.).

Estate Administration

Family Allowance

Surviving Spouse requested a family allowance for $166,728 asserting that she needed that sum for her maintenance for one year after her husband’s death and that she did not have sufficient separate property of her own. The trustee of a trust which was the beneficiary of the husband’s estate objected asserting the Surviving Spouse has sufficient separate property and thus did not need a family allowance. The trial court agreed and denied the request. Surviving Spouse appealed.


The appellate court first rejected Surviving Spouse’s claim that the trial court lacked subject matter jurisdiction because the administration was independent citing Estates Code § 402.001. The court explained that “although section 402.002 limits the probate court’s supervision of the independent administration, it does not deprive the probate court of jurisdiction over matters relating to the estate.” Id. at *4.


The court then affirmed the trial court holding that it did not abuse its discretion in denying Surviving Spouse’s family allowance claim. Estates Code § 353.101 prohibits a family allowance for a surviving spouse if the spouse has adequate separate property. The trial court considered Surviving Spouse’s separate property interest in the homestead. The court recognized that she had rights to the homestead but she had already sold the homestead thus the prohibition on partition was inapplicable. In addition, Surviving Spouse did not apply for a family allowance until after her spouse was deceased for over one year. Thus, the allowance was not needed for her support during the one year after the deceased spouse’s death.


Moral:  A surviving spouse seeking a family allowance should make the claim before one year has elapsed to strengthen the argument that the allowance is actually needed for maintenance and is not just an attempt to secure a greater share of the deceased spouse’s estate.