COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 2-08-005-CV
ESTATE OF RICHARD GLENN WOLFE, SR., DECEASED
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FROM PROBATE COURT NO. 2 OF TARRANT COUNTY
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OPINION
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I. Introduction
In three issues, Appellant Morgan W olfe (“Morgan”) asserts that the
probate court erred, when granting a request for a family allowance, by failing
to consider and deduct as separate property (a) the life insurance proceeds paid
to Appellee Sondra Gay Wolfe (“Sondra”) during the year following the death
of Richard Glenn Wolfe, Sr. (“Richard”); (b) the individual retirement account
benefits received by Sondra during the year following Richard’s death; and (c)
the income earned and to be earned by Sondra during the year following
Richard’s death. We affirm.
II. Factual and Procedural History
Richard married Sondra on January 1, 2000, and died six and one-half
years later on July 8, 2006. During their marriage, Richard maintained a life
insurance policy that named Sondra as the beneficiary. Richard’s will was
admitted to probate in Tarrant County Probate Court Number 2, wherein Lionel
Robert Lane (“Lane”) was appointed and qualified as the Independent Executor
of Richard’s estate. On April 23, 2007, Sondra filed an “Application for Family
Allowance Before Approval of Inventory” asserting that her expenses for the
year following Richard’s death would be at most $132,444. On May 1, 2007,
Lane filed an “Objection to [Sondra’s Application] for Family Allowance Before
Approval of Inventory,” and two days later Morgan, son of Richard and a
beneficiary under Richard’s will, also filed an “Objection to Application for
Family Allowance.” Following an evidentiary hearing and briefing by the
parties, the probate court approved Sondra’s application and ordered that a
family allowance of $126,840 be paid to her.
Sondra asserted in connection with her request for a family allowance
that she had “no separate property or property in her own right adequate for her
maintenance.” During the year following Richard’s death, she received the life
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insurance proceeds totaling $291,250, was the beneficiary of Richard’s IRA
accounts totaling $120,000, and had income of $85,000.
This appeal by Morgan resulted.
III. Standard of Review
We review the actions of the probate court in granting the family
allowance under the abuse of discretion standard. Gonzalez v. Guarjardo de
Gonzalez, 541 S.W.2d 865, 868 (Tex. Civ. App.—Waco 1976, no writ); San
Angelo Nat’l Bank v. Wright, 66 S.W.2d 804, 805 (Tex. Civ. App.—Austin
1933, writ ref’d).
To determine whether a court abused its discretion, we must decide
whether the court acted without reference to any guiding rules or principles; in
other words, we must decide whether the act was arbitrary or unreasonable.
Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241–42 (Tex. 1985),
cert. denied, 476 U.S. 1159 (1986). Merely because a court may decide a
matter within its discretion in a different manner than an appellate court would
in a similar circumstance does not demonstrate that an abuse of discretion has
occurred. Id.
An abuse of discretion does not occur where the court bases its decisions
on conflicting evidence. In re Barber, 982 S.W.2d 364, 366 (Tex. 1998) (orig.
proceeding). Furthermore, an abuse of discretion does not occur as long as
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some evidence of substantive and probative character exists to support the trial
court’s decision. Butnaru v. Ford Motor Co., 84 S.W.3d 198, 211 (Tex. 2002).
IV. The Probate Code
The pertinent statutory provisions of the Texas Probate Code read in part
as follows:
§ 286. Family Allowance to Surviving Spouses and Minors
[A] surviving spouse . . . may apply to the court to have the court
fix the family allowance. . . . The applicant bears the burden of
proof by a preponderance of the evidence . . . .
§ 287. Amount of Family Allowance
Such allowance shall be of an amount sufficient for the
maintenance of such surviving spouse . . . for one year from the
time of the death of the testator . . . . The allowance shall be fixed
with regard to the facts or circumstances then existing and those
anticipated to exist during the first year after such death.
§ 288. When Family Allowance Not Made
No such allowance shall be made for the surviving spouse when
the survivor has separate property adequate to the survivor’s
maintenance[.]
Tex. Prob. Code Ann. §§ 286(b), 287, 288 (Vernon 2003).
V. Issues
A. Life Insurance Proceeds
Morgan first asserts that the trial court erred by awarding a family
allowance because the life insurance proceeds received by Sondra exceeded the
requested family allowance.
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The basis of Morgan’s argument is that the proceeds of the life insurance
policy, which was community property while Richard was alive, became
Sondra’s separate property on the death of her husband. See Brown v. Lee,
371 S.W.2d 694, 695–96 (Tex. 1963); Dent v. Dent, 689 S.W.2d 521, 522
(Tex. App.—Fort Worth 1985, no writ); Parker Square State Bank v. Huttash,
484 S.W.2d 429, 430 (Tex. App.—Fort Worth 1972, writ ref’d n.r.e.). Upon
Richard’s death, his estate vested “immediately in his heirs at law,” Tex. Prob.
Code Ann. § 37 (Vernon 2003), including Sondra, and further, property
acquired by Sondra through “gift, devise, or descent” is Sondra’s separate
property under the Texas Family Code. See Tex. Fam. Code Ann. § 3.001(2)
(Vernon 2006). Hence, argues Morgan, pursuant to section 288 of the Texas
Probate Code, no family allowance was permitted because her separate
property, the life insurance proceeds, exceeded her Family Allowance request,
and the trial court abused its discretion by making the award.
However, as pointed out by Sondra, it has been held that “separate
property” for purposes of a family allowance, including that acquired by “gift,
devise, or descent”
does not mean the surviving wife’s interest in the community
property of herself and deceased husband, so as to bar her from
the right to an allowance for the first year’s support of the
community estate of herself and husband[.]
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Pace v. Eoff, 48 S.W.2d 956, 959 (Tex. Comm’n App. 1932, judgm’t
adopted).
In other words, life insurance proceeds, as community property of Richard
and Sondra before Richard’s death, are not considered to be the “separate
property” of Sondra following his death in the family allowance calculation.
Further, in Barnett v. Barnett, Mrs. Barnett received during the first year
following her husband’s death a $426 per month annuity; a tax refund of
$3,851; $41,637.86 from her husband’s savings plan; and worked full-time
earning $10 an hour. 985 S.W.2d 520, 532 (Tex. App.—Houston [1st Dist.]
1998, rev’d in part on other grounds, 67 S.W.3d 107, 108 (Tex. 2001)). The
court found that “none of these funds were the [w]ife’s separate property.” Id.
This determination was affirmed by our Supreme Court. Barnett v. Barnett, 67
S.W .3d 107, 126 (Tex. 2001). This must be read to mean that the funds
Sondra received after her husband’s death were not her “separate property” as
that term is used in connection with a family allowance under the Texas
Probate Code.
Therefore, following this authority, we cannot say that the trial court
abused its discretion by allowing a family allowance because Sondra received
life insurance proceeds following Richard’s death. We overrule Morgan’s first
issue.
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B. IRA Benefits and Earned Income
In his second and third issues, Morgan repeats his argument that he made
in issue one and applies it to the retirement benefits amounting to $121,000
that Sondra received in the year following Richard’s death and to the income
she earned that year amounting to $85,000.
We will follow the reasoning we applied to Morgan’s first issue and note
that in Cooper v. Pierce, our supreme court specifically found that the fact that
a minor, who is also entitled to a family allowance under the same Texas
Probate Code provisions previously cited and who was a wage earner, “did not
deprive him of the right to demand and take the allowance that the law gave
him out of his deceased father’s estate.” Cooper v. Pierce, 74 Tex. 526, 529,
12 S.W. 211, 212 (1889). We overrule Morgan’s second and third issues.
VI. Conclusion
Having overruled Morgan’s issues, we affirm the trial court’s judgment.
BOB MCCOY
JUSTICE
PANEL: LIVINGSTON, DAUPHINOT, and MCCOY, JJ.
DELIVERED: September 18, 2008
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