In Ferreira v. Butler, a husband and wife divorced, and the husband married a second wife. No. 17-0901, 2019 Tex. LEXIS 375 (Tex. April 12, 2019). The second wife died, and the husband never probated her will, which left everything to him. Nine years later, the husband died and his will left most of his estate to his first wife. The first wife was the executor of his estate, and she then attempted to probate the second wife’s will. The second wife’s intestate heirs contested the probate of that will on the ground that it was barred by the four-year limitations period in Section 256.003(a) of the Texas Estates Code. The trial court granted the heirs’ motion for summary judgment and dismissed the application to probate the second wife’s will. The court of appeals affirmed, and the first wife appealed.

The Texas Supreme Court reversed for the first wife. Section 256.003(a) of the Texas Estates Code states: “Except as provided by Section 501.001 with respect to a foreign will, a will may not be admitted to probate after the fourth anniversary of the testator’s death unless it is shown by proof that the applicant for the probate of the will was not in default in failing to present the will for probate on or before the fourth anniversary of the testator’s death.” Id. (quoting Tex. Est. Code § 256.003(a)). The Court held that the husband’s estate qualified as an interested person because he was the second wife’s heir, devisee, and spouse. The Court agreed with the lower courts that the first wife was barred from probating the second wife’s will in her capacity as executor because the first wife was standing in the shoes of the husband’s estate, the default inquiry must focus on the husband and there was no proof that the husband was not in default in failing to probate the second wife’s will within four years of her death.

The Court then held that the first wife also had standing to probate the second wife’s will in her individual capacity as she was the beneficiary of the husband’s estate, who was the beneficiary of the second wife’s estate. The Court then reversed prior precedent and held that “under Section 256.003(a), when an applicant seeks late-probate of a will in her individual capacity, only the applicant’s conduct is relevant to determining whether she ‘was not in default.’” Id. The Court held that if the first wife had applied to probate the will in her individual capacity the husband’s default would be irrelevant under Section 256.003(a). As the first wife did not assert individual standing, the Court could not render for her. However, the Court vacated the judgments of the lower courts in the interest of justice and remanded the case to the trial court to give the first wife an opportunity to amend her pleadings to pursue probate of the will in her individual capacity.

Interesting note: It is probably safe to say that the second wife would roll over in her grave if she knew that the first wife would receive the second wife’s assets over the second wife’s own children. This case brings up a very frequent issue: second marriages where the husband and wife have children from previous relationships. The spouse loves and wants to provide for his or her surviving spouse. But the spouse probably wants to leave his or her estate to his or her own children after the surviving spouse dies. If the spouse leaves everything to his or her surviving spouse outright, then the deceased spouse will have no say in where the assets go after the surviving spouse’s death. That is the exact case set forth above. This issue can be remedied by leaving the deceased spouse’s assets in a trust with the surviving spouse as the primary beneficiary and the deceased spouse’s children as the remainder beneficiaries. A word of warning is that the deceased spouse should make a third party (bank) the sole trustee or have the surviving spouse be a co-trustee with the remainder beneficiaries also being co-trustees. It is all too common for the surviving spouse, who is a sole trustee of the trust, to treat the trust assets as his or her own assets and not give consideration to his or her fiduciary duties to the remainder beneficiaries. Also, the spouse could leave property to the surviving spouse in a life estate with the remainder interest going to the deceased spouse’s children. There are other potential methods to solve this thorny issue. A person should seek legal advice from an qualified estate planning attorney to ensure that his or her assets do not end up with an unintended person or persons.