Texas Appellate Court Addresses Partition and Turnover of Community Property Held By Surviving Spouse

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In the March 2021 opinion of Estate of Tillotson, a Texas appellate court addressed the partition of community property after a spouse died intestate, in a dispute between the surviving spouse and children from a prior relationship.

The Facts of Estate of Tillotson

Leah Tillotson died intestate, survived by her spouse, Thomas, and children from a previous marriage, including her daughter, Kristi.  Kristi was appointed as administratrix of Leah’s Texas estate.

Kristi filed an initial and amended inventory, appraisement, and list of claims with the trial court.  Thomas objected, and his objections were overruled.  After Thomas’ objections were overruled, Kristi filed her Second Application for Partition and Distribution of the Estate.

Following a non-evidentiary hearing, the trial court signed an order (Turnover Order).  The Turnover Order ordered Thomas to turn over to the administratrix sums representing decedent’s one-half community property interest in Thomas’s Rollover IRA, Roth IRA, U.S. savings bonds, and a Fidelity individual stock account.

Thomas appealed the Turnover Order, arguing that  (1) as surviving spouse, only he alone may apply for a partition of the community property under Texas law, which he did not do; (2) as surviving spouse, he is entitled to retain possession and control of all community property that was legally under his management during the marriage; (3) all of the property he was ordered to turn over was his sole management community property; and (4) even assuming Kristi had the right to apply for partition of Thomas’s sole management community property under Texas law, the Turnover Order does not comply with the Estates Code because it fails to address Thomas’s right to statutory deductions.

Is A Texas Surviving Spouse The Only Person Entitled to Apply For Partition of Community Property?

No, a surviving spouse is not the only person who can apply for partition of community property under Texas law.  A Texas estate administrator or executor may also request partition of community property. While the Texas Estates Code permits a surviving spouse to apply for partition of the community property, such permission is not to the exclusion of the estate fiduciary.  Section 360.253(a)  of the Texas Estates Code states:

If a spouse dies leaving community property, the surviving spouse, at any time after letters testamentary or of administration have been granted and an inventory, appraisement, and list of claims of the estate have been returned or an affidavit in lieu of the inventory, appraisement, and list of claims has been filed, may apply in writing to the court that granted the letters for a partition of the community property.

The Estates Code also provides that any time after the first anniversary of the date original letters testamentary or of administration are granted, an executor, administrator, heir, or devisee of a decedent’s estate, by written application filed in the court in which the estate is pending, may request the partition and distribution of the estate. See EST. § 360.001(a).

The Texas Estates Code further provides that if an intestate deceased spouse is survived by a child, the deceased spouse’s undivided one-half interest in the community estate passes to the deceased spouse’s children. See id. § 201.003.

The Court agreed with the administratrix’s argument that section 360.253(a) merely provides legal authority to a surviving spouse who is not a personal representative of the Texas estate or an heir or devisee the opportunity to force the partition of the community estate when it has not been partitioned to that surviving spouse’s satisfaction.

The Court concluded that the administratrix could request partition of community property under the Texas Estates Code.

A Texas Surviving Spouse Can Retain Sole Management Community Property If No Administration Pending

Thomas also argued that as surviving spouse, he was entitled under Texas law to retain possession and control of all community property that was legally under his management during the marriage, and that all of the property he was ordered to turn over was his sole management community property.

The Texas Estates Code provides that the surviving spouse is entitled to retain possession and control of the community property that was legally under the sole management of the surviving spouse during the marriage and exercise over that property any power authorized by the Estates Code if there is no administration pending on the deceased spouse’s estate. See EST. § 453.009(b).

By its plain language, section 453.009 only applies when there is no administration pending.  In addition, the court noted that section 453.001 provides chapter 453 does not prohibit the administration of community property under other sections of the Estates Code. See id. § 453.001.

The Surviving Spouse Must Deliver The Community Property Amounts To the Heirs Or Devisees, Not To the Administrator Of the Texas Estate

Section 453.007 of the Texas Estates Code provides:

On final partition of the community estate, the surviving spouse shall deliver to the deceased spouse’s heirs or devisees their interest in the estate, and the increase in and profits of the interest, after deducting from the interest:

(1) the proportion of the community debts chargeable to the interest;

(2) unavoidable losses;

(3) necessary and reasonable expenses; and

(4) a reasonable commission for the management of the interest.

To conform to the directive of the statute, the court modified the Turnover order to order Thomas to turn over the designated amounts to decedent’s heirs according to their respective shares of the estate, rather than to the administratrix.

In all other respects, the Turnover Order was affirmed.  The takeaway from this case is that the surviving spouse of an intestate spouse who has children from a different relationship will face an uphill battle in preventing a partition of community property and preventing the decedent’s descendants in obtaining their shares under Texas law.

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