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.1Link to the text of the note 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.