In In re Estate of Wetzel, a widow and independent administrator of her husband’s estate appealed a trial court’s order denying her requested family allowance. No. 05-20-01104-CV, 2022 Tex. App. LEXIS 2618 (Tex. App.—Dallas April 21, 2022, no pet. history). Section 353.101 of the estates code provides for a family allowance for the support of a decedent’s surviving spouse for one year after the date of the decedent’s death as follows:

(a) Unless an application and verified affidavit are filed as provided by Subsection (b), immediately after the inventory, appraisement, and list of claims of an estate are approved or after the affidavit in lieu of the inventory, appraisement, and list of claims is filed, the court shall fix a family allowance for the support of the decedent’s surviving spouse,

. . . .

(b) Before the inventory, appraisement, and list of claims of an estate are approved or, if applicable, before the affidavit in lieu of the inventory, appraisement, and list of claims is filed, the decedent’s surviving spouse . . . may apply to the court to have the court fix the family allowance by filing an application and a verified affidavit describing: (1) the amount necessary for the maintenance of the surviving spouse . . . for one year after the date of the decedent’s death; and (2) the surviving spouse’s separate property . . . . (c) At a hearing on an application filed under Subsection (b), the applicant has the burden of proof by a preponderance of the evidence. The court shall fix a family allowance for the support of the decedent’s surviving spouse. . . . (d) A family allowance may not be made for: (1) the decedent’s surviving spouse, if the surviving spouse has separate property adequate for the surviving spouse’s maintenance . . . .

Id. (citing Tex. Est. Code § 353.101). The court affirmed the order denying the family allowance and stated:

At the hearing on Ms. Michael’s objection, the trial court considered evidence of Ms. Wetzel’s separate property as follows: (1) IRA accounts valued at approximately $40,000; (2) personal property valued at approximately $1,745; and (3) 50% interest in the Wentwood house valued at approximately $652,700. Ms. Wetzel urges consideration of her separate ownership interest in the Wentwood property violates her homestead rights. However, Ms. Michael responds that the record contains other evidence the trial court could have considered, including evidence that Ms. Wetzel chose to sell the homestead prior to filing her request for family allowance, used her share of the sale proceeds towards another house co-owned by her mother, and was not required to make any mortgage payments towards the new house.

The trial court’s order denying the family allowance included findings that Ms. Wetzel had sufficient separate property to provide for her maintenance for one year following the death of her husband and that she was not entitled to a family allowance pursuant to section 353.101 of the estates code. The record contains evidence to support these findings, as well as many other factors the trial court may have taken into consideration in the exercise of its discretion. One factor the trial court could have considered is that the focus of the statute is on the year following the decedent’s death, and Ms. Wetzel did not apply for the family allowance until more than one year after the decedent’s death.

Additionally, the trial court could have considered that Ms. Wetzel elected to sell the homestead prior to any request for or objection to a family allowance. The trial court could also have considered that Ms. Wetzel made the decision to take money from her family in the form of borrowing against her mother’s assets for the Glendora house. In all events, we conclude no abuse of discretion exists on this record.

Id.

Tags: estate litigation, family allowance, surviving spouse benefits
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Photo of David Fowler Johnson David Fowler Johnson

[email protected]
817.420.8223

David maintains an active trial and appellate practice and has consistently worked on financial institution litigation matters throughout his career. David is the primary author of the The Fiduciary Litigator blog, which reports on legal cases and issues impacting the fiduciary…

[email protected]
817.420.8223

David maintains an active trial and appellate practice and has consistently worked on financial institution litigation matters throughout his career. David is the primary author of the The Fiduciary Litigator blog, which reports on legal cases and issues impacting the fiduciary field in Texas. Read More

David’s financial institution experience includes (but is not limited to): breach of contract, foreclosure litigation, lender liability, receivership and injunction remedies upon default, non-recourse and other real estate lending, class action, RICO actions, usury, various tort causes of action, breach of fiduciary duty claims, and preference and other related claims raised by receivers.

David also has experience in estate and trust disputes including will contests, mental competency issues, undue influence, trust modification/clarification, breach of fiduciary duty and related claims, and accountings. David’s recent trial experience includes:

  • Representing a bank in federal class action suit where trust beneficiaries challenged whether the bank was the authorized trustee of over 220 trusts;
  • Representing a bank in state court regarding claims that it mismanaged oil and gas assets;
  • Representing a bank who filed suit in probate court to modify three trusts to remove a charitable beneficiary that had substantially changed operations;
  • Represented an individual executor of an estate against claims raised by a beneficiary for breach of fiduciary duty and an accounting; and
  • Represented an individual trustee against claims raised by a beneficiary for breach of fiduciary duty, mental competence of the settlor, and undue influence.

David is one of twenty attorneys in the state (of the 84,000 licensed) that has the triple Board Certification in Civil Trial Law, Civil Appellate and Personal Injury Trial Law by the Texas Board of Legal Specialization.

Additionally, David is a member of the Civil Trial Law Commission of the Texas Board of Legal Specialization. This commission writes and grades the exam for new applicants for civil trial law certification.

David maintains an active appellate practice, which includes:

  • Appeals from final judgments after pre-trial orders such as summary judgments or after jury trials;
  • Interlocutory appeals dealing with temporary injunctions, arbitration, special appearances, sealing the record, and receiverships;
  • Original proceedings such as seeking and defending against mandamus relief; and
  • Seeking emergency relief staying trial court’s orders pending appeal or mandamus.

For example, David was the lead appellate lawyer in the Texas Supreme Court in In re Weekley Homes, LP, 295 S.W.3d 309 (Tex. 2009). The Court issued a ground-breaking opinion in favor of David’s client regarding the standards that a trial court should follow in ordering the production of computers in discovery.

David previously taught Appellate Advocacy at Texas Wesleyan University School of Law located in Fort Worth. David is licensed and has practiced in the U.S. Supreme Court; the Fifth, Seventh, and Eleventh Federal Circuits; the Federal District Courts for the Northern, Eastern, and Western Districts of Texas; the Texas Supreme Court and various Texas intermediate appellate courts. David also served as an adjunct professor at Baylor University Law School, where he taught products liability and portions of health law. He has authored many legal articles and spoken at numerous legal education courses on both trial and appellate issues. His articles have been cited as authority by the Texas Supreme Court (twice) and the Texas Courts of Appeals located in Waco, Texarkana, Beaumont, Tyler and Houston (Fourteenth District), and a federal district court in Pennsylvania. David’s articles also have been cited by McDonald and Carlson in their Texas Civil Practice treatise, William v. Dorsaneo in the Texas Litigation Guide, and various authors in the Baylor Law Review, St. Mary’s Law Journal, South Texas Law Review and Tennessee Law Review.

Representative Experience

  • Civil Litigation and Appellate Law
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