In the
Court of Appeals
Second Appellate District of Texas
at Fort Worth
No. 02-26-00360-CV
IN THE ESTATE OF WILLIAM DAVID WOOD, DECEASED
On Appeal from the 97th District Court
Montague County, Texas
Trial Court No. 24-169-DCCV-0155
Before Sudderth, C.J.; Bassel and Womack, JJ.
Memorandum Opinion by Chief Justice Sudderth
MEMORANDUM OPINION
If a surviving spouse repeatedly requests a family allowance—in her pleadings
and her objections to closing the estate’s administration—but the spouse fails to
accompany her requests with a verified affidavit, has the spouse waived the
family-allowance issue such that the trial court can reject her unverified requests out
of hand? The plain language of the Texas Estates Code says no, Tex. Est. Code
§ 353.101(a), but the trial court answered yes.
The trial court concluded that, because the decedent’s surviving spouse,
Appellant Sue Wood (Spouse), failed to accompany her requests for a familyallowance with a verified affidavit, such requests were “legally insufficient” and failed
as a matter of law. Spouse challenges this ruling, arguing that it was an abuse of
discretion and that the trial court compounded the error by relying on it when it
closed the estate’s administration. We agree and will reverse and remand.
I. Background
William David Wood (Decedent) died in October 2023. Not long thereafter,
his will was admitted to probate, and the trial court appointed one of his two children
as independent administrator—Appellee Courtney Jo Kennedy (Administrator). In
April 2024, Administrator filed an affidavit in lieu of an inventory, appraisement, and
list of claims. See id. §§ 309.056(b), 402.001.
Several months later—almost a year after Decedent’s death—Spouse filed her
original petition. Spouse asserted multiple causes of action, but more importantly for
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our purposes, she asserted that she was entitled to “a family allowance under Tex. Est.
Code Ch. 353 for one year of reasonable expenses,” which expenses she estimated
were “between $80,000–$110,000.” See id. § 353.101. Spouse did not accompany her
petition with a verified affidavit. See id. § 353.101(b).
Regardless, she asked the trial court to compel Administrator to provide her
with a copy of the inventory, appraisement, and list of claims, see id. § 309.056(c), so
Administrator filed the document, detailing Decedent’s property and stating that “[n]o
claims [we]re due and owing.”1 Spouse initially objected to the inventory, but the
parties entered into a Rule 11 Agreement that addressed many of Spouse’s
complaints,2 so the trial court approved the inventory.
Because the Rule 11 Agreement resolved the distribution of most of
Decedent’s property, it did not take long for Administrator to distribute what
remained and to file a closing report.3 See id. §§ 405.004, .005. Administrator
Decedent’s personal property included both separate and community assets,
1
but his sole real property interest was held as his separate property. Decedent and Spouse had purchased the relevant real property together prior to their marriage, and they co-owned the land and used it as their homestead.
2
Under the Rule 11 Agreement, Spouse withdrew her objections to the
inventory, Decedent’s personal property was divided in an agreed-upon manner, and Spouse was permitted to continue using the homestead and certain personal property for a specified period of time. The Rule 11 Agreement did not address Decedent’s real property interest.
Administrator deeded Decedent’s real property to his two children, who
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assumed Decedent’s portion of the mortgage.
3
accompanied her closing report with an application to close the estate’s
administration, asserting that “[n]o assets of the estate [we]re remaining in the
possession of the personal representative” and “[a]ll the debts known to exist against
the estate ha[d] been paid.” See id. § 405.009.
But Spouse’s request for a family allowance remained pending. Indeed, even
before Administrator filed her closing report, Spouse noticed a hearing on her
requested family allowance. And within thirty days of Administrator filing the closing
report and application to close, Spouse objected, reurging her request for a family
allowance and arguing that the “family allowance to be fixed by the court [wa]s a debt
of the estate that prevent[ed] closing until paid.” See id. § 405.007(a). Administrator,
in turn, asserted that Spouse’s family-allowance request was “procedurally defective”
because it was not supported by a verified affidavit.4 See id. § 353.101(b).
So, when the parties appeared for a joint hearing on Spouse’s request for a
family allowance and Administrator’s application to close, Spouse sought to offer
testimony regarding her need for a family allowance, but Administrator nipped it in
the bud.5 Administrator objected that, because Spouse had not accompanied her
4
Administrator also asserted that that Spouse’s request for a family allowance was untimely, that it was barred by laches, and that Spouse had sufficient separate property to provide for her own maintenance.
5
The trial court preadmitted several exhibits—bank statements, emails related to the Rule 11 Agreement, and emails from Administrator purporting to summarize certain expenses—but when Spouse took the stand to testify, she answered just a handful of basic identification questions before Administrator interjected.
4
original petition’s family-allowance request with a verified affidavit, the request “d[id]
not meet the requirements of [Section] 353.101 [of the Estates Code] . . . and no
family allowance c[ould] be allowed.”6 The trial court agreed, verbally ruling that,
because there “[wa]s no verified affidavit with [Spouse’s] application,” the familyallowance request was denied as a matter of law. Then, with that issue out of the way,
the trial court found that Administrator had made arrangements to pay the estate’s
sole remaining (recently discovered) debts,7 and it ordered that upon payment of
those debts, administration of the estate would close.
The trial court later cemented its family-allowance ruling in a written order and
in findings of fact and conclusions of law. Both documents explained, in varying
levels of detail, that Spouse’s “application for family allowance did not meet the
requirements of Texas Estate Code[s] § 353.101(b) because it was not supported by a
verified affidavit,” so it was “legally insufficient” and “denied as a matter of law.” The
trial court also signed a final judgment stating that, upon payment of the remaining
6
Administrator argued that because the hearing was “on [Spouse’s] application” for a family allowance, the application requirements applied. See Tex. Est. Code § 353.101(b).
7
Spouse had filed new notices of claims against Decedent’s estate seeking reimbursement for certain burial expenses and for mortgage payments made on the real property that she had co-owned with Decedent. At the hearing, Decedent’s children confirmed that they were willing to reimburse Spouse for these two claims.
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debts, the estate’s administration would close and Administrator would be
discharged.8
Spouse appeals.9
II. Discussion
In Spouse’s first appellate issue,10 she asserts that the trial court abused its
discretion by ruling that her failure to accompany her family-allowance request with a
verified affidavit rendered the request “legally insufficient” such that the trial court
was not required to consider it and could deny a family allowance as a matter of law.11
8
In Spouse’s motion for new trial, she acknowledged that, within thirty days of the judgment, Administrator had paid the two reimbursement claims. Nonetheless, Spouse continued filing amended petitions and notices of claims even after the estate’s administration had closed.
9
Administrator argues that Spouse’s appeal is moot because she “agreed to the distribution of all of Decedent’s personal property and his homestead passe[d] free of Decedent’s debts,” so there is “nothing [left] with which the estate could pay” Spouse’s family-allowance claim. But a party’s insolvency does not render the case moot. Cf. Ratner v. Sioux Nat. Gas Corp., 770 F.2d 512, 516–17 (5th Cir. 1985) (holding that “the mere possibility that a judgment debtor lacks the means to satisfy its monetary liability does not kill the issues in a case” and reasoning that, otherwise, “[a]n indigent defendant . . . could defeat any lawsuit simply by asserting that his poverty moots the claims against him”). Furthermore, Administrator’s argument is premised on several fact-intensive determinations, including the amount of Spouse’s family allowance, whether the estate had sufficient funds to pay that family allowance, and whether other property could have been provided in lieu of a family allowance.
10
Spouse raises five issues relating to the trial court’s handling of her request for a family allowance and its allegedly premature closing of the estate’s administration.
11
Although Administrator urged the trial court to reject Spouse’s unverified family-allowance request as a matter of law, she argues on appeal that the trial court lacked the authority to even consider the issue. According to Administrator, because
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“We review the actions of the [trial] court in granting [or denying] the family
allowance under the abuse of discretion standard.” Est. of Wolfe, 268 S.W.3d 780, 782
(Tex. App.—Fort Worth 2008, no pet.); see Wetzel, 2022 WL 1183294, at *3; Est. of
Nielsen, 533 S.W.3d 39, 40 (Tex. App.—Texarkana 2017, no pet.). This standard is
lenient; a trial court does not abuse its discretion as long as it acts with reference to
guiding rules and principles, basing its decision on substantive and probative evidence.
See Nielsen, 533 S.W.3d at 40; Wolfe, 268 S.W.3d at 782. But the standard is not
unbounded. A trial court has no discretion to misinterpret or misapply the law. See
Nielsen, 533 S.W.3d at 40.
this was an independent administration, “further action of any nature [could] not be had in the probate court,” and the trial court thus had no discretion to abuse in ruling on Spouse’s family-allowance request. Tex. Est. Code § 402.001. Administrator does not cite any case law for her new position.
Regardless, our sister court rejected a similar argument in In re Estate of Wetzel. No. 05-20-01104-CV, 2022 WL 1183294, at *1–2 (Tex. App.—Dallas Apr. 21, 2022, no pet.) (mem. op.). The Dallas Court of Appeals held that the probate court had jurisdiction to consider an objection to an independent administrator’s notice of a family allowance. Id. The court explained that, while the Estates Code “limits the probate court’s supervision of the independent administration, it does not deprive the probate court of jurisdiction over matters relating to the estate”—such as objections to a family allowance—and it emphasized that “[S]ection 353.101 of the [E]states [C]ode provides for [trial court] proceedings related to the family allowance.” Id.; see Tex. Est. Code § 402.001 (providing exception to rule that “further action . . . may not be had in the probate court” for those instances “where this title specifically and explicitly provides for some action in the court”); cf. Womack v. Redden, 846 S.W.2d 5, 8–9 (Tex. App.—Texarkana 1992, writ dism’d) (holding that, despite the independent administration, the probate court had jurisdiction to consider application to set aside the homestead under a statute containing wording similar to that in Section 353.101).
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And that is what the trial court did here—it misinterpreted and misapplied the
law. The trial court refused to consider or set a family allowance based on the
premise that Spouse’s “application for family allowance did not meet the requirements
of Texas Estate Code § 353.101(b) because it was not supported by a verified
affidavit.” See Tex. Est. Code § 353.101(b). But the verified-affidavit procedure in
Section 353.101(b) was inapplicable, and the Estates Code does not condition the
family allowance on a surviving spouse’s filing a verified affidavit.
The Estates Code provides that, “immediately after the inventory,
appraisement, and list of claims . . . [is] approved or after the affidavit in lieu . . . is
filed, the court shall fix a family allowance,” id. § 353.101(a), and in an independent
administration, the independent administrator “shall set aside and deliver to those
entitled . . . allowances for support,” id. § 403.001; see id. § 402.001. The word “shall”
is mandatory. Tex. Gov’t Code § 311.016(2) (“‘Shall’ imposes a duty.”); see In re J.S.,
670 S.W.3d 591, 600 (Tex. 2023) (noting that “[w]e generally construe the word ‘shall’
as mandatory” (quoting Albertson’s, Inc. v. Sinclair, 984 S.W.2d 958, 961 (Tex. 1999)).
Although the Estates Code provides an exception to this rule—the
verified-affidavit exception referenced in the trial court’s ruling—such exception
merely expedites the timing of the statutorily required act. If the surviving spouse
does not want to wait for her family allowance, she can hasten it by filing “an
application and a verified affidavit . . . [b]efore the inventory . . . [is] approved
or . . . before the affidavit in lieu . . . is filed.” Tex. Est. Code § 353.101(b). Then,
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after a hearing on the matter, the trial court “shall fix a family allowance.” Id.
§ 353.101(c).
But this expedited procedure is entirely optional, and a surviving spouse does
not waive the family allowance by declining to follow it. See id. § 353.101(a)
(providing that “[u]nless an application and verified affidavit are filed” under the
expedited verified-affidavit procedure in Subsection (b), then “immediately after the
inventory . . . [is] approved or after the affidavit in lieu . . . is filed, the court shall fix a
family allowance”); 18 M.K. Woodward et al., Texas Practice Series: Probate & Decedents’
Estates § 886 (2026) (recognizing that an “[a]pplication by the claimant is not a
necessary prerequisite to the right to a family allowance”).
And here, the expedited, verified-affidavit procedure was irrelevant anyway
because Spouse’s requests for a family allowance came after Administrator had filed
an affidavit in lieu of an inventory. See Tex. Est. Code § 353.101(a), (b). Furthermore,
when the trial court ruled on the issue, the estate was on the brink of closure, and
Spouse had objected to that closure based on her unresolved requests to set a family
allowance. See id. In other words, at the time of the challenged family-allowance
ruling, Administrator’s affidavit in lieu was a distant memory, see id. § 353.101(a),
Administrator had not set aside any allowance, see id. § 403.001, Spouse had repeatedly
raised the issue, and the trial court had no excuse—it “shall fix a family allowance,” id.
§ 353.101(a); see Barnett v. Barnett, 985 S.W.2d 520, 531–32 (Tex. App.—Houston [1st
Dist.] 1998) [hereinafter, Barnett I] (holding trial court erred by concluding that
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surviving spouse’s failure to seek jury findings on family-allowance issue amounted to
waiver and emphasizing that the statute “requires the court to fix a family allowance”),
aff’d in part, rev’d in part on other grounds, 67 S.W.3d 107, 126 (Tex. 2001) (partial plurality
op.) (affirming in majority portion of opinion as to family-allowance issue for “the
reasons set forth by the court of appeals”).12
This is not to say that the trial court was required to fix Spouse’s family
allowance at any specific number—or even any non-zero number. “Although a trial
court is required to fix an allowance, the amount of the allowance is within the trial
court’s discretion.” Barnett I, 985 S.W.2d at 532. It may be that the evidence would
have shown Spouse “ha[d] separate property adequate for [her] maintenance” for one
year after Decedent’s death. Tex. Est. Code § 353.101(d)(1). Indeed, her delayed
request for a family allowance suggested this possible outcome. See Wetzel, 2022 WL
1183294, at *3 (noting that “[o]ne factor the trial court could have considered [in
setting the family allowance] is that the focus of the statute is on the year following
When Barnett I was decided in 1998, the relevant statutory provision was
12
codified in Section 286 of the Texas Probate Code. See Act of May 28, 1993, 73d Leg., R.S., ch. 846, § 20, 1993 Tex. Gen. Laws 3337, 3346 (H.B. 1200, stating that, “[u]nless an affidavit is filed under [the expedited procedure in] Subsection (b) . . . , [then] immediately after the inventory[’s] . . . approv[al], the court shall fix a family allowance for the support of the surviving spouse,” and further providing expedited procedure in Subsection (b) by stating that, “[b]efore the approval of the inventory . . . a surviving spouse . . . may apply . . . [for] the family allowance by filing an application and a verified affidavit”); see also Act of May 26, 2009, 81st Leg., R.S., ch. 680, § 11, 2009 Tex. Gen. Laws 1512, 1732 (H.B. 2502, recodifying Probate Code and emphasizing that “no substantive change in law is intended”).
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the decedent’s death, and [the surviving spouse] did not apply for the family allowance
until more than one year after the decedent’s death”).
But the trial court did not make that determination; it declined to even hear
evidence on the issue. Cf. Tex. Est. Code §§ 353.101(d)(1), .102 (describing factors
that “must” be considered in setting the amount of the family allowance). Instead,
the trial court rejected Spouse’s request for a family allowance out of hand based on a
statutory prerequisite that did not exist, finding that Spouse had effectively waived the
family-allowance issue by filing a “legally insufficient” request without a verified
affidavit. Under the plain language of the Estates Code, this was error. See id.
§ 353.101(a). We therefore sustain Spouse’s first appellate issue.
And this first issue disposes of Spouse’s others. Because the trial court abused
its discretion by concluding that Spouse had waived her right to seek a family
allowance, the trial court further abused its discretion by overruling Spouse’s
family-allowance-related objection to Administrator’s closing report and application to
close the estate. See id. § 405.007(a) (providing that, if an interested person objects to
a closing report within 30 days of its filing, “the independent administration of the
estate is closed when the objection has been disposed of or the court signs an order
closing the estate”). Thus, Spouse’s other attacks on the estate’s closure are moot. See
Tex. R. App. P. 47.1.
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III. Conclusion
The trial court erred by refusing Spouse’s requests to fix a family allowance
based on the requests’ unverified nature, and the court further erred by overruling
Spouse’s family-allowance-related objections to closing the estate’s administration.
We reverse those portions of the trial court’s judgment and remand the case for
further proceedings consistent with this opinion. See Tex. R. App. P. 43.2(d).
/s/ Bonnie Sudderth
Bonnie Sudderth
Chief Justice
Delivered: August 27, 2026
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