A Texas Case Shows How the Doctrine of Election Can Affect Property Rights
Mr. Smith’s wife, Lois, died, leaving behind Mr. Smith and their two sons, Blackstone and James.
Lois left a will giving Mr. Smith her personal property, all of her real property, and, specifically, her mineral interests in Pecos County, Texas. Mr. Smith immediately took possession of those items.
Lois also left a specific bequest of 170.89 acres in Kimble County, Texas. She bequeathed Mr. Smith a life estate in that property, and gave the remainder interest to their son, James. That meant James would own the property outright once Mr. Smith died.
There was, however, a hiccup: Lois did not own the 170.89 acres at the time of her death. She had never owned it. Mr. Smith had inherited that property from his parents, so it was his separate property.
Everyone knows that someone cannot devise, or gift, property that does not belong to them. Lois had no right to leave the 170.89 acres to son James in her will. Mr. Smith ignored the bequest in Lois’ will and deeded the 170.89 acres to son Blackstone.
Mr. Smith died. Son James died.
What happened next was surprising. James’ beneficiaries sued Blackstone, claiming they owned the 170.89 acres because Lois had left it to James in her will.
What was their theory? They claimed that they had a right to the property under the “doctrine of election.”
What is the Doctrine of Election?
The doctrine of election is one of those sneaky principles that can catch even the savviest of beneficiaries. It states that a person may not take the benefits under a will and then make a claim that defeats part or all of the other terms of the will.
In other words, as a devisee under a will you have to make a choice:
- You can choose to surrender some right of yours which the will attempts to dispose of and accept the will’s benefits.
- You can retain the right threatened by the will and reject the will’s benefits.
Since the person making the will is presumed to dispose of only his or her property, you are only put to an election where the terms of the will clearly express that person’s intent to dispose of your property.
How the Doctrine Applied in This Case
Lois’ will clearly expressed her intent to dispose of the 170.89 acres to her son James. There was no ambiguity.
Thus, when Lois died, her husband Mr. Smith had a choice. He could take the benefits of the will – his wife’s personal property, mineral interests, and real property – and not oppose her giving away his separate property. Or he could elect to refuse to accept those benefits under the will and keep his 170.89 acres.
Mr. Smith made the choice to accept the benefits, although perhaps “choice” is too strong a word. Did Mr. Smith make a deliberate choice, or did he just not realize the legal effect of accepting the will’s benefits? Had he even heard of the doctrine of election at that point?
As it turns out, Mr. Smith’s knowledge and awareness did not matter. Although, as the appellate court pointed out, he should have been aware of the adage “one cannot have his cake and eat it, too.”
Against all logic, Mr. Smith’s separate property passed to James under Lois’ will.
The lesson? Talk to a lawyer about the doctrine of elections before you accept a benefit under a will.
Need Help Understanding Your Rights Under a Will?
Questions about a will can affect your property and your family. If you need help understanding your options, schedule a consultation with the experienced estate planning and probate attorneys at Hammerle Morris.
Virginia Hammerle is an accredited estate planner whose practice includes estate planning, probate, guardianship, and litigation.
This article is for informational purposes only and does not constitute legal advice.
Smith v. Smith, 657 S.W.2d 457 (Tex.App.- San Antonio 1983, writ ref’d n.r.e.)
