HBA-JLV H.B. 3467 77(R)    BILL ANALYSIS


Office of House Bill AnalysisH.B. 3467
By: Hartnett
Judicial Affairs
3/26/2001
Introduced



BACKGROUND AND PURPOSE 

Current law provides that if, after making a will, a testator is divorced
or a testator's marriage is annulled, all provisions in the will in favor
of the testator's former spouse, or appointment of such a spouse to
fiduciary capacity under the will with respect to the estate or person of
the testator's children, must be read as if the former spouse failed to
survive the testator, and the will is considered null and void and of no
effect unless the will expressly provides otherwise.  Many believe that a
surviving spouse who has filed for divorce in which the parties believe
there is no reasonable expectation of reconciliation, should not be able to
benefit from a decedent testator as well.  House Bill 3467 provides that  a
surviving spouse that has filed for divorce in which the parties believe
there is no reasonable expectation of reconciliation, should not be able to
benefit from a decedent testator or intestate absent some other affirmative
showing to the contrary. 

RULEMAKING AUTHORITY

It is the opinion of the Office of House Bill Analysis that this bill does
not expressly delegate any additional rulemaking authority to a state
officer, department, agency, or institution. 

ANALYSIS

House Bill 3467 amends the Texas Probate Code to provide that the filing or
contesting in probate court of any pleading relating to a decedent's estate
does not constitute tortious interference with inheritance of the estate.
The bill provides that if, at the time of a testator's death or at the time
of the death of a decedent who dies intestate, a petition for divorce filed
by the testator or the surviving spouse was pending in a court, all
provisions in the will appointing the surviving spouse to any fiduciary
capacity under the will or with respect to the estate or person of the
testator's children, must be read as if the surviving spouse failed to
survive the testator, and are null and void and of no effect unless the
will expressly provides otherwise, if in the divorce action either spouse
has signed and filed a sworn statement that there is no reasonable
expectation of reconciliation and the divorce petition and statement were
both filed not later than the 61st day before the date of the decedent's
death. 

The bill removes the requirement that the social security numbers of the
applicant and decedent be included on an application for probate of a will
as a muniment to title. 

The bill provides that when an application is made for the probate of a
written will that cannot be produced in court, an heir may waive service of
citation by delivering a signed affidavit to the court stating that the
heir does not object to the offer of the testator's will for probate.  The
affidavit must also contain a statement that an original will cannot be
produced in court, and the testator's property will pass to the testator's
heir if a copy of the written will is not admitted to probate.  If an
application for the probate of a written will not produced in court is
filed and the residence of any of the testator's heirs cannot be
ascertained by the clerk, the court is required to appoint an attorney ad
litem to protest the interests of unknown heirs. 

EFFECTIVE DATE

September 1, 2001.