affirming summary judgment in Interpleader Proceeding holding trust distributions are Carlos’s separate property
How later courts described this case
- affirming summary judgment in Interpleader Proceeding holding trust distributions are Carlos’s separate property
- holding judgment in trespass-to-try-title suit was not binding on heirs who lacked standing to assert such claims
- describing marriage as a “deeply personal right,” making it “wrong to compel a divorce under no-fault, when neither party desires divorce”
- “It is generally accepted that before separation can be used as a ground for divorce, the separation must be voluntary.”
Written by the judges who cited it.
The opinion
Supreme Court of Texas
══════════
No. 23-0463
══════════
In the Matter of the Marriage of Carlos Y. Benavides, Jr. and
Leticia R. Benavides
═══════════════════════════════════════
On Petition for Review from the
Court of Appeals for the Fourth District of Texas
═══════════════════════════════════════
Argued September 10, 2024
JUSTICE BOYD delivered the opinion of the Court.
CHIEF JUSTICE BLACKLOCK filed a concurring opinion, in which
Justice Devine and Justice Sullivan joined.
A woman appointed as guardian for her elderly father moved him
out of the house he shared with his fourth wife and later filed for divorce
on his behalf on the ground that the couple had lived apart for more than
three years. The trial court granted the divorce, and the wife appealed.
The man died while the appeal was pending, and the court of appeals
dismissed the appeal as moot and affirmed the divorce decree. The wife
raises three issues in this Court, arguing (1) the man’s death did not
moot her appeal, (2) Texas law does not permit a guardian to sue for
divorce on her ward’s behalf, and (3) living apart is not a ground for
divorce when neither spouse voluntarily lived apart from the other.
We agree that the man’s death did not moot the appeal because
whether the marriage ended by divorce or by death substantially affects
the wife’s asserted property interests. We need not definitively decide
the second issue and need not reach the third. To whatever extent the
Texas Estates Code may allow a guardian to seek a divorce on her ward’s
behalf, it at least requires the guardianship and divorce courts to find
that permitting the divorce would promote the ward’s well-being and
protect his best interests. Because neither court made that finding in
this case and—because of the ward’s death—neither can do so now, we
reverse the court of appeals’ judgment, vacate the divorce decree, and
dismiss.
I.
Background
Carlos “C.Y.” Benavides, Jr. was the patriarch of “one of Laredo’s
oldest and most powerful clans.”1 A descendant of Laredo’s founder,
Carlos2 had substantial assets, including as a beneficiary of the
Benavides Family Mineral Trust.3 Carlos married his fourth wife,
Leticia Russo, on September 11, 2004. They each signed a pre-marital
agreement and a post-marital agreement in which they stipulated that
no community property would ever be created during the marriage and
1 Christopher Hooks, Trash Talk, TEXAS MONTHLY (October 2016),
https://www.texasmonthly.com/articles/battle-over-laredo-landfill.
2Because many of the people involved in this case share the same
surname, we will refer to them by their first names.
3 See Benavides v. Alexander, 646 S.W.3d 14, 18 (Tex. App.—San
Antonio 2021, pet. denied); Benavides v. Mathis, 433 S.W.3d 59, 62 (Tex.
App.—San Antonio 2014, pet. denied).
2
that each spouse’s separate property and any income it produced would
belong solely to that spouse, or to his or her estate, unless one
transferred the property to the other “by will or other written
instrument.”4
About seven months after Carlos and Leticia married, Carlos filed
for divorce (the First Divorce Proceeding). About five months later (a
year after they married, and while the divorce proceeding was pending),
a physician diagnosed Carlos with dementia. See Alexander, 646 S.W.3d
at 18. Carlos did not pursue the divorce, and the trial court dismissed
the First Divorce Proceeding for want of prosecution in February 2007.
Leticia asserts that Carlos changed his mind about wanting a divorce.
Carlos’s adult daughter from a prior marriage—Linda Cristina
Benavides Alexander—contends that Carlos wanted the divorce but was
unable to pursue it because of his quickly worsening dementia.
By the end of 2007, Carlos had signed documents adding Leticia’s
name to his bank accounts, designating the accounts as joint accounts
with a right of survivorship, conveying an office building to Leticia, and
identifying both spouses as borrowers on a loan to refinance their
residence. Id. Leticia asserts that Carlos gave her “full authority” over
his accounts and repeatedly told her that “todo lo mio es tuyo”—“all that
I have is yours.” Id. Linda contends that, to the extent Carlos in fact did
4 See In re Marriage of Benavides, 692 S.W.3d 526, 533–34 (Tex. App.—
San Antonio 2023) (further describing details of the pre-marital agreement).
Although Leticia has disputed that she signed or even knew about the
pre-marital agreement until several years after the wedding, she concedes that
she signed the post-marital agreement and thus ratified the pre-marital
agreement. See Alexander, 646 S.W.3d at 18.
3
or said any of these things, he did so only because Leticia took advantage
of his mental incapacity. The ensuing disputes between Linda and
Leticia have led to numerous lawsuits and appeals, which we will refer
to as the Guardianship Proceeding, the Trust-Distribution Proceeding,
the Interpleader Proceeding, the Second Divorce Proceeding, the Third
Divorce Proceeding, and the Will-Contest Proceeding.5
5 See, e.g., In re Marriage of Benavides, 692 S.W.3d at 545 (dismissing
Leticia’s appeal from divorce decree entered in Third Divorce Proceeding as
moot because Carlos died while appeal was pending and affirming divorce
decree); In re Marriage of Benavides, No. 04-24-00006-CV, 2024 WL 1893651,
at *1 (Tex. App.—San Antonio May 1, 2024, no pet.) (mem. op.) (dismissing for
want of jurisdiction Leticia’s appeal from order in Third Divorce Proceeding
denying her motion to modify temporary orders pending her appeal from
divorce decree); In re Est. of Benavides, No. 04-21-00077-CV (Tex. App.—San
Antonio Aug. 7, 2023, order) (denying motion to lift abatement of appeal from
judgment in Will-Contest Proceeding), available at
https://tinyurl.com/ytkawkma; In re Guardianship of Benavides, No. 04-20-
00598-CV (Tex. App.—San Antonio Dec. 14, 2021, order) (abating appeal from
judgment in Guardianship Proceeding), available at
https://tinyurl.com/4teed3pt; Alexander, 646 S.W.3d at 14 (reversing and
affirming in part final judgment in Interpleader Proceeding, upholding rulings
that Carlos, through his guardian, was entitled to possession and control of all
disputed funds and property but striking finding regarding Carlos’s mental
capacity at time of alleged oral gift of residence); In re Benavides, No.
04-21-00008-CV, 2021 WL 260253, at *1 (Tex. App.—San Antonio Jan. 27,
2021, orig. proceeding) (mem. op.) (denying Leticia’s petition for writ of
injunction and prohibition arising out of Will-Contest Proceeding because
Leticia “has not shown the issuance of a writ of injunction or prohibition is
necessary to enforce our jurisdiction”); In re Guardianship of Benavides, No.
04-19-00801-CV, 2020 WL 7365454, at *5 (Tex. App.—San Antonio Dec. 16,
2020, no pet.) (mem. op.) (reversing orders in Guardianship Proceeding
dismissing Leticia’s objections to Linda’s request for distribution instructions
and motion to remove Linda as guardian); In re Benavides, 605 S.W.3d 234,
239 (Tex. App.—San Antonio 2020, pet. denied) (dismissing Leticia’s appeal
and denying her mandamus petition challenging order in Guardianship
Proceeding striking her motion to vacate the part of 2013 order that declared
the 2011 will and related estate-plan documents void); In re Benavides, No. 04-
4
On September 2, 2011, Linda and her brothers filed an
application for appointment of a guardian over Carlos’s person and
14-00718-CV, 2014 WL 6979438, at *4 (Tex. App.—San Antonio Dec. 10, 2014,
orig. proceeding) (mem. op.) (granting mandamus to compel the court hearing
the Second Divorce Proceeding to grant Leticia’s plea in abatement to allow
the court hearing the Interpleader Action to resolve all issues over rights to
marital property); Benavides v. Benavides, No. 04-14-00523-CV, 2014 WL
5020283, at *2 (Tex. App.—San Antonio Oct. 8, 2014, pet. denied) (mem. op.)
(affirming summary judgment for Benavides Family Mineral Trust’s co-
trustees on Leticia’s fiduciary-duty claims); In re Guardianship of Benavides,
No. 04-13-00196-CV, 2014 WL 1494606, at *4 (Tex. App.—San Antonio Apr.
16, 2014, no pet.) (mem. op.) (reversing order in Guardianship Proceeding
granting attorney ad litem’s motion to compel production of attorney’s client
file and granting sanctions); In re Guardianship of Benavides, No. 04-13-
00197-CV, 2014 WL 667525, at *2 (Tex. App.—San Antonio Feb. 19, 2014, pet.
denied) (mem. op.) (dismissing Leticia’s appeal from order in Guardianship
Proceeding holding Leticia lacks standing to contest guardianship or
appointment guardian because she asserted interests adverse to Carlos by
suing to challenge the pre- and post-marital agreements and claiming Carlos’s
property as community property); Mathis, 433 S.W.3d at 67 (affirming
summary judgment in Interpleader Proceeding holding trust distributions are
Carlos’s separate property); Benavides v. Mathis, No. 04-13-00186-CV, 2013
WL 5950123, at *1 (Tex. App.—San Antonio Nov. 6, 2013, no pet.) (mem. op.)
(granting motion to dismiss Leticia’s appeal from summary-judgment order in
Interpleader Proceeding because order was not final and appealable); In re
Benavides, No. 04-13-00280-CV, 2013 WL 2145997, at *1 (Tex. App.—San
Antonio May 15, 2013, orig. proceeding) (mem. op.) (denying Carlos’s
mandamus petition challenging order on motion to compel in Guardianship
Proceeding on ground that attorney lacked authority to file on Carlos’s behalf);
In re Benavides, No. 04-13-00012-CV, 2013 WL 1460468, at *1 (Tex. App.—San
Antonio Apr. 10, 2013, orig. proceeding) (mem. op.) (denying Leticia’s
mandamus petition arising out of Second Divorce Proceeding, without
explanation); In re Guardianship of Benavides, 403 S.W.3d. 370, 377 (Tex.
App.—San Antonio 2013, pet. denied) (affirming guardianship court’s order
holding attorney lacked authority to represent Carlos in Guardianship
Proceeding); In re Benavides, No. 04-11-00755-CV, 2011 WL 5115868, at *1
(Tex. App.—San Antonio Oct. 26, 2011, orig. proceeding) (denying without
discussion Leticia and Carlos’s mandamus petition and emergency-relief
motion arising out of Guardianship Proceeding).
5
estate (the Guardianship Proceeding). See Guardianship of Benavides,
403 S.W.3d at 373. About two weeks later, Carlos signed a new will and
related documents (the 2011 Will) that named Leticia as his executor,
left his entire estate to Leticia, expressly disqualified his children from
serving as his guardian, named Leticia as his preferred guardian, and
granted Leticia his financial and medical powers of attorney. Id. at 375.
Leticia and Carlos filed these documents in the Guardianship
Proceeding, objected to the appointment of a guardian, and moved to
dismiss Linda’s application. On October 14, 2011, the guardianship
court appointed Shirley Hale Mathis as temporary guardian of Carlos’s
person and estate and appointed an attorney ad litem to represent
Carlos’s interests.6
Acting as Carlos’s temporary guardian, Mathis notified the
co-trustees of the Benavides Family Mineral Trust of her appointment
and requested that they send Carlos’s trust distributions to her. Mathis,
433 S.W.3d at 62. She also notified certain banks that she had the
exclusive right to access Carlos’s accounts. Leticia objected to both
actions and instructed the co-trustees and banks that she was entitled
to all or half of the distributions and accounts. When the co-trustees
refused to honor her demands, Leticia sued Mathis for tortious
interference and the trustees for breach of fiduciary duties (the
6 See generally Mathis, 433 S.W.3d at 62; Guardianship of Benavides,
2014 WL 1494606, at *1; Guardianship of Benavides, 403 S.W.3d. at 373. The
Texas Estates Code authorizes courts to appoint a temporary guardian if
substantial evidence demonstrates that the proposed ward may be
incapacitated and that the immediate appointment of a guardian is
required. TEX. EST. CODE § 1251.001(a); see In re Guardianship of Fairley, 650
S.W.3d 372, 376 (Tex. 2022).
6
Trust-Distribution Proceeding). Id. at 62, 61 n.1.7 Around the same time,
the banks filed an interpleader action to resolve Leticia’s and Mathis’s
competing claims to Carlos’s bank accounts (the Interpleader
Proceeding). Benavides, 2014 WL 6979438, at *1. Leticia filed
crossclaims in the Interpleader Proceeding against Mathis and Linda,
who in turn asserted counterclaims against Leticia. Id. Leticia claimed
in this proceeding that Carlos had orally gifted all his property to her.8
Meanwhile, in the Guardianship Proceeding, Linda objected to
Leticia and Carlos’s appearance and to their filing of the 2011 Will,
asserting that Leticia lacked standing to appear because she had
asserted interests adverse to Carlos and that Carlos lacked capacity to
sign the documents or to hire an attorney in 2011. On May 21, 2012, the
guardianship court agreed and found that Carlos was totally
incapacitated in 2011 and was thus incompetent to determine his own
residence, to make decisions regarding his marriage, to sign the 2011
Will, or to hire the attorney who appeared on his behalf in the
Guardianship Proceeding. The court also dismissed Leticia from the
suit, ruling that she lacked standing to contest the guardianship or the
7 The trial court hearing the Trust-Distribution Proceeding ultimately
granted summary judgment for Mathis and the trustees on all claims, Mathis,
2013 WL 5950123, at *1, and the court of appeals affirmed, holding that the
trust distributions were Carlos’s separate property. Mathis, 433 S.W.3d at 67;
see also Benavides, 2014 WL 5020283, at *2. We denied Leticia’s petition for
review.
8 After a jury trial in the spring of 2018, the court of appeals ultimately
rejected Leticia’s claims in the Interpleader Proceeding and ruled that Carlos,
acting through the guardian of his estate, was entitled to possession and
control of the funds and property as his sole and separate property. Benavides,
646 S.W.3d at 22–26. We again denied Leticia’s petition for review.
7
appointment of a guardian because she had asserted interests adverse
to Carlos’s interests in the Trust-Distribution Proceeding and the
Interpleader Proceeding.9
On October 12, 2012, Mathis, as temporary guardian of Carlos’s
person and estate, filed for divorce on Carlos’s behalf (the Second
Divorce Proceeding). Leticia filed a plea in abatement in July 2013,
arguing that the court hearing the Interpleader Proceeding had
dominant jurisdiction over the claims involving the marital property
and concurrent jurisdiction over the divorce claim. The divorce court
denied Leticia’s plea, but the court of appeals granted Leticia’s
mandamus petition, holding that the Interpleader Proceeding court had
dominant jurisdiction because that case was filed first, involved all the
parties to the divorce proceeding, and “either includes or could be
amended to include all of the issues to be determined in the divorce.” Id.
at *1–2. In 2017, Mathis nonsuited her claims in the Second Divorce
Proceeding.
Meanwhile, on March 6, 2013, the guardianship court appointed
Mathis as the permanent guardian of Carlos’s estate and appointed
9 Carlos’s attorney filed a notice of appeal, but the court of appeals
affirmed, rejecting the argument that Carlos was entitled to a jury trial on the
issue of whether he lacked capacity to hire the attorney who appeared on his
behalf. Guardianship of Benavides, 403 S.W.3d. at 375. Leticia also appealed,
but the court of appeals dismissed her appeal, agreeing that she lacked
standing to contest the guardianship or the appointment of a guardian because
of her interests adverse to Carlos. Guardianship of Benavides, 2014 WL
667525, at *1.
8
Linda as the permanent guardian of his person. 10 This order explicitly
granted Mathis the power to “file, prosecute or defend any litigation,
including divorce proceedings on [Carlos’s] behalf” (emphasis added).
Mathis, 433 S.W.3d at 62 & n.2. Later that month, the court granted
Linda the power “to prosecute, defend and otherwise participate in [the]
divorce action.” Neither order expressly found, however, that the divorce
proceeding would be in Carlos’s best interests or promote his well-being.
A few weeks later, with the guardianship court’s approval, Linda moved
Carlos from the home he shared with Leticia into a house on Linda’s
property.
On October 19, 2016, Mathis resigned as guardian of Carlos’s
estate and the guardianship court appointed Linda as permanent
guardian of his person and estate.11 In March 2018, after Mathis had
nonsuited the Second Divorce Proceeding, Linda filed the Third Divorce
Proceeding, which is the proceeding that gives rise to this present
appeal. Leticia filed a plea to the jurisdiction, arguing that Linda lacked
10 The Estates Code authorizes guardianships of a person, an estate, or
both. See TEX. EST. CODE §§ 1002.012(b), 1101.001(b)(3); see also Guardianship
of Fairley, 650 S.W.3d at 380–81.
11 Mathis resigned amid allegations that she had a less-than-impartial
relationship with the trial judge, who himself resigned from the bench and
surrendered his law license in part because of complaints waged against him
in the Guardianship Proceeding. See César Rodriguez & Taryn Walters, Judge
Jesus ‘Chuy’ Garza arrested, LAREDO MORNING TIMES (Jan. 13, 2017),
https://www.lmtonline.com/news/article/Judge-Jesus-Chuy-Garza-arrested-
10855115.php; COMM’N ON JUD. CONDUCT, In re Honorable Jesus “Chuy”
Garza (Jan. 25, 2017),
https://www.scjc.texas.gov/media/46412/GarzaResignation.pdf. Following
these events, Leticia moved to vacate the original judge’s orders, but the new
judge denied the motion, and Leticia did not appeal that ruling.
9
standing to file for divorce and that she had conflicts of interest that
disqualified her from serving as Carlos’s guardian. The trial court
denied Leticia’s plea.
In August 2020, Linda filed partial-summary-judgment motions
to enforce the pre-marital and post-marital agreements, to confirm the
status of Carlos’s separate property, and to obtain a final judgment of
divorce. As grounds for the divorce, she asserted that Carlos and Leticia
had lived apart without cohabitation for more than three years. See TEX.
FAM. CODE § 6.006 (“The court may grant a divorce in favor of either
spouse if the spouses have lived apart without cohabitation for at least
three years.”). The trial court granted Linda’s motions, rendering
divorce and holding that the pre-marital and post-marital agreements
are valid, that no community property was created by the marriage, and
that Carlos’s separate property was not subject to division in the divorce.
The court then denied or overruled all of Leticia’s motions for
reconsideration and for new trial, as well as her objections to the final
divorce decree. Leticia appealed from the divorce decree, but Carlos died
two weeks later. See 692 S.W.3d at 531.
On December 24, 2020, the day after Carlos died, Linda filed an
application to probate a will Carlos signed in 1996, which left all his
assets to Linda and her brothers (the Will-Contest Proceeding). Leticia
then filed a competing application to probate the 2011 Will, which left
everything to Leticia. Both parties contested the other party’s proposed
will. The trial court rendered judgment for Linda, and Leticia appealed.
The court of appeals has abated Leticia’s appeals from the
judgments in the Will-Contest Proceeding and the Guardianship
10
Proceeding, pending resolution of this appeal from the judgment in the
Third Divorce Proceeding.12 In this appeal, Linda moved to dismiss on
the ground that Carlos’s death rendered the appeal moot. The court of
appeals agreed and dismissed the appeal, but it nevertheless affirmed
the divorce decree. Id. at 545. We granted Leticia’s petition for review.
II.
Mootness
We begin with the jurisdictional issue of whether Carlos’s death
on December 23, 2020, mooted Leticia’s appeal from the divorce decree
rendered in the Third Divorce Proceeding on September 9, 2020. We
conclude it did not.
Under Texas law, a marriage “may be terminated only by death
or a court decree.” Claveria’s Est. v. Claveria, 615 S.W.2d 164, 167 (Tex.
1981). Because a divorce decree is purely personal to the parties, a suit
for divorce becomes moot if a spouse dies before the court renders
judgment granting the divorce. Whatley v. Bacon, 649 S.W.2d 297, 299
(Tex. 1983) (orig. proceeding). When that occurs, the marriage
necessarily ends by death, rather than by decree. See Baker v. Bizzle,
687 S.W.3d 285, 289 & n.3 (Tex. 2024) (citing cases).13
12 See Est. of Benavides, No. 04-21-00077-CV (Aug. 7, 2023, order),
available at https://tinyurl.com/ytkawkma (abating appeal from judgment in
the Will-Contest Proceeding); Guardianship of Benavides, No. 04-20-00598-CV
(Dec. 14, 2021, order), available at https://tinyurl.com/4teed3pt (abating appeal
from judgment in Guardianship Proceeding).
13 See also Baker, 687 S.W.3d at 296 (LEHRMANN, J., concurring) (“When
a party to a divorce proceeding dies before the trial court has [rendered
judgment of divorce], the unsurprising result is dismissal on mootness
grounds.”).
11
But when a spouse dies after a trial court has rendered a valid
divorce decree, the marriage ends by decree rather than by death. Yet
this is true only if the divorce decree is valid, and an appeal may be
required to resolve a party’s challenge to its validity. In some cases, the
decree’s validity is legally irrelevant because how the marriage ended
does not affect either party’s rights. But in other cases, “the property
rights of the parties would be significantly affected depending upon
whether the marriage was held to have been terminated by divorce
decree or by death.” Dunn v. Dunn, 439 S.W.2d 830, 834 (Tex. 1969).14
When the way the marriage ended significantly affects a spouse’s
property rights, a live controversy remains between the parties and the
parties retain the opportunity to challenge the decree’s validity on
14 Justice Lehrmann recently provided examples of ways in which the
termination of a marriage by divorce prior to one spouse’s death “can have a
significant effect on distribution of [the deceased spouse’s] estate”:
For example, if a person gets divorced after making a will, then
the will’s provisions are read as if the former spouse had failed
to survive her, unless the will expressly provides otherwise. TEX.
EST. CODE § 123.001(b)(1). A divorce also revokes provisions in
certain trust instruments executed by the deceased person
before the divorce. Id. § 123.052. Intestacy laws apply differently
depending on whether the deceased person left a surviving
spouse. Id. § 201.001–.003. Nontestamentary assets are likewise
affected; the Family Code places conditions on the validity of a
provision in a life insurance policy issued before a divorce
naming the former spouse as a beneficiary. TEX. FAM. CODE
§ 9.301.
Baker, 687 S.W.3d at 296–97 (LEHRMANN, J., concurring); see Novotny v.
Novotny, 665 S.W.2d 171, 174 (Tex. App.—Houston [1st Dist.] 1983, writ
dism’d) (holding death did not moot appeal when divorce affected party’s right
to receive employment and insurance benefits).
12
appeal. Id.15 In that circumstance, the spouse’s death does not moot the
appeal. Id.
Leticia contends that Carlos’s death did not moot her appeal
challenging the divorce decree’s validity because the decree significantly
affects her rights under Carlos’s 2011 Will.16 Leticia concedes that Texas
law prevents her from receiving any assets under the 2011 Will if the
divorce decree is valid, even though the will names her as Carlos’s sole
beneficiary.17 But if the divorce decree is invalid, Leticia is Carlos’s
15 See, e.g., Guardianship of Fairley, 650 S.W.3d at 380 (holding party’s
post-judgment death did not moot appeal because “live controversy” remained
over which court should properly adjudicate a wrongful-death claim); Zipp v.
Wuemling, 218 S.W.3d 71, 73 (Tex. 2007) (“An appeal is moot when a court’s
action on the merits cannot affect the rights of the parties.” (quoting VE Corp.
v. Ernst & Young, 860 S.W.2d 83, 84 (Tex. 1993))).
16 Leticia argued in her briefing that the distinction also affects property
rights other than her rights under the 2011 Will, but she conceded at oral
argument that she now relies only on the latter. See Supreme Court of Texas,
23-0463 Matter of the Marriage of Carlos and Leticia Benavides, YouTube
(Sept. 10, 2024), https://www.youtube.com/watch?v=HMSEbo9tbZk, at
8:00–8:52 (“[Justice Boyd:] So what property right would be significantly
affected if . . . it’s determined that she takes through the divorce as opposed to
the death? [Leticia:] The will. . . . [Justice Boyd:] So do you concede that she
waived the . . . constitutional life estate in the marital home? . . . [Leticia:]
That’s not at issue. . . . Really, what it boils down to is the will.”). Similarly,
Linda argued in her briefing that Leticia’s appeal is moot but conceded at oral
argument that it is not. See id. at 25:32–25:58 (“[Linda:] If the test is whether
the outcome would be different today whether they were married on death or
divorced on death, clearly the outcome would be different because she would
at least have the opportunity to present her will. . . . [Justice Boyd:] And then
that says to me under Dunn, it’s not moot. [Linda:] I think you’re right. Under
Dunn, it’s not moot.”).
17 See TEX. EST. CODE § 123.001(b)(1) (“If, after the testator makes a
will, the testator’s marriage is dissolved by divorce, . . . [then] unless the will
expressly provides otherwise[,] . . . all provisions in the will . . . shall be read
as if the former spouse . . . had failed to survive the testator.”).
13
surviving spouse and has standing to pursue her claim to Carlos’s assets
under the 2011 Will. In response, Linda argues that whether the
marriage ended by death or divorce is irrelevant because Leticia can
never receive anything under the 2011 Will. In support, Linda asserts
that courts have already concluded that the will itself is invalid because
Carlos was incapacitated when he signed it.
Based on our review of all the various proceedings, however, it
appears that no court has yet issued a final, non-appealable judgment
that both declares the 2011 Will invalid and binds Leticia. As explained
above, Leticia appeared in the Will-Contest Proceeding and offered the
2011 Will for probate, but Linda argued that Leticia lacked standing to
participate in that proceeding because the divorce court rendered the
divorce decree before Carlos died. In response, Leticia asked the probate
court to abate the Will-Contest Proceeding until the courts resolve this
appeal from the divorce decree. The trial court refused to abate and
instead dismissed Leticia’s claims for lack of standing. Leticia appealed
that order, arguing that the trial court abused its discretion by denying
her motion to abate the Will-Contest Proceeding.18 Leticia then filed a
motion in the court of appeals to abate that appeal.19 The court of
appeals granted the motion on December 15, 2021, and Leticia’s appeal
has been pending in that court since, awaiting resolution of this appeal
18 See Appellant’s Brief, Est. of Benavides, No. 04-21-00077-CV,
available at https://tinyurl.com/322y7dy9.
19 See Appellant’s Opposed Motion to Abate, Est. of Benavides, No. 04-
21-00077-CV, available at https://tinyurl.com/yc6spmrc.
14
from the divorce decree.20 In short, the Will-Contest Proceeding has not
been finally decided and remains abated until after a final decision is
rendered in this divorce action.
Nevertheless, Linda argues that courts in other proceedings have
already issued judgments that declare the 2011 Will invalid because
Carlos lacked capacity when he signed it. Linda points first to orders
entered in the Guardianship Proceeding in 2013, seven years before any
will contest began. As explained above, Leticia appeared in the
Guardianship Proceeding and relied on the 2011 Will and related
documents to challenge Linda’s guardianship application. The probate
court ultimately dismissed Leticia from the suit, concluding she lacked
standing to contest the creation of a guardianship or the appointment of
a guardian because she asserted interests adverse to Carlos in the
Trust-Distribution Proceeding and the Interpleader Proceeding. The
court also found that Carlos lacked capacity in September 2011, declared
the 2011 Will and related documents void, and granted Linda’s
application for appointment of a guardian.
Leticia appealed those orders, but Linda challenged Leticia’s
standing “to appeal from any order except the one finding that she had
20 See Est. of Benavides, No. 04-21-00077-CV (Dec. 15, 2021, order),
available at https://tinyurl.com/4afvsk9j. On July 18, 2023, after the court of
appeals issued its decision in this case dismissing Leticia’s appeal from the
divorce decree and affirming the divorce, Linda moved to lift the abatement in
the Will-Contest Proceeding. See Appellee’s Motion to Lift Stay, Est. of
Benavides, No. 04-21-00077-CV, available at https://tinyurl.com/hzpbzfyx. The
court of appeals denied the motion on August 7, 2023, noting that Leticia had
filed a petition for review in this Court challenging the divorce decree. See Est.
of Benavides, No. 04-21-00077-CV, (Aug. 7, 2023, order), available at
https://tinyurl.com/2krbcrjx.
15
no standing to contest the guardianship.”21 The court of appeals agreed
and affirmed the dismissal of Leticia’s claims. Guardianship of
Benavides, 2014 WL 667525, at *1. Linda contends that the court
affirmed the orders voiding the 2011 Will, but the court of appeals’
opinion does not support that characterization. The court affirmed only
“the probate court’s order that Leticia lacks standing because she has
an interest adverse to Carlos” and “the probate court’s order . . . finding
Leticia lacks standing to contest the guardianship proceeding and the
appointment of a guardian.” Id. at *1–2.22
The appellate court affirmed the dismissal of Leticia’s claims in
the Guardianship Proceeding for lack of standing based on her adverse
interests, not on the merits of her challenge to the orders voiding the
2011 Will. Because Leticia lacked standing, she was not a party to the
Guardianship Proceeding and the orders in that case are not binding on
her. See Swilley v. McCain, 374 S.W.2d 871, 874 (Tex. 1964) (“[R]es
judicata . . . binds only the parties to the first suit and those who claim
under them. It may not be invoked by one who is not bound by the
judgment in the earlier proceeding.”).23
21 See Brief of Appellees, Guardianship of Benavides, No. 04-13-00197-
CV, available at https://tinyurl.com/23tde8fd.
22 Leticia also contends that the probate court’s 2013 order declaring
the 2011 Will void is itself void for lack of subject-matter jurisdiction “because
a court cannot adjudicate the validity of a living person’s will.” See TEX. EST.
CODE § 256.002 (“The probate of a will of a living person is void.”). In light of
our recognition that the 2013 orders are not binding on Leticia, we need not
address this alternate contention.
23See also, e.g., State v. Naylor, 466 S.W.3d 783, 789 (Tex. 2015)
(holding State was not bound by divorce decree when it was not a party to
16
Linda also relies on the court of appeals’ holding in a different
appeal that Carlos lacked capacity to hire the lawyer who drafted the
2011 Will. See Guardianship of Benavides, 403 S.W.3d at 377. That
appeal arose out of the guardianship court’s order finding that the
lawyer who appeared on Carlos’s behalf to contest Linda’s guardianship
application lacked authority to represent Carlos because Carlos lacked
capacity to contract for legal services in 2011. Id. at 372–73. But the
court of appeals was careful to explain in that case that the probate
court’s determination regarding Carlos’s capacity was merely “a
pre-trial determination regarding an attorney’s authority to represent a
party” and “d[id] not involve a determination of ultimate issues of fact.”
Id. at 374. The court held only that Leticia was not entitled to a jury
trial on that “pre-trial determination” and that “the trial court was well
within its discretion in finding that [the attorney] had no authority to
represent [Carlos] in the underlying guardianship proceedings.” Id. at
377. The court expressly did not resolve the ultimate issue of the 2011
Will’s validity in that proceeding.
We thus conclude that no court has yet issued a final,
non-appealable judgment that is both binding on Leticia and declares
that the 2011 Will is invalid. For now, at least, Leticia possesses a legal
claim to Carlos’s assets under the 2011 Will, which is pending on appeal.
Because that claim is automatically destroyed if the marriage ended by
proceedings); Dougherty v. Humphrey, 424 S.W.2d 617, 621 (Tex. 1968)
(holding judgment in trespass-to-try-title suit was not binding on heirs who
lacked standing to assert such claims).
17
decree but not if it ended by death, we conclude that Carlos’s death did
not moot Leticia’s appeal from the decree.
III.
Guardian’s Authority to Pursue Ward’s Divorce
We now turn24 to Leticia’s first merits issue regarding the validity
of the divorce decree: whether Texas law permits a court-appointed
guardian to pursue a divorce on the ward’s behalf. We addressed this
issue more than thirty-five years ago, holding that “a guardian ad litem
or next friend can exercise the right of a mentally ill person to obtain a
divorce.” Wahlenmaier v. Wahlenmaier, 762 S.W.2d 575, 575 (Tex. 1988)
(per curiam). In reaching that conclusion, we expressly disapproved of
Texas appellate court decisions holding “that a guardian or next friend
may not exercise the right of a mentally ill person to obtain a divorce.”
Id. But as Leticia notes, the ward involved in Wahlenmaier had initiated
the divorce before she became incompetent, and Wahlenmaier was a per
curiam decision that “contains no legal analysis and has been cited by
only one other Texas court in the past three and a half decades.”25
Although we have only touched on the issue in Wahlenmaier,
numerous courts in other jurisdictions have debated the issue for
decades. Historically, and even recently, most American courts have
24 Having concluded that the court of appeals erred in holding that
Carlos’s death mooted Leticia’s appeal from the divorce decree, we could simply
reverse the court’s judgment and remand this cause for that court to address
the remaining issues. The trial court, however, has already decided those
issues, and the parties have fully briefed the issues and urge us to address
them here.
25 See Stubbs v. Ortega, 977 S.W.2d 718, 722 (Tex. App.—Fort Worth
1998, pet. denied) (“Wahlenmaier . . . was unequivocal and not limited to a
particular set of facts or circumstances.”).
18
declined to authorize guardians to initiate a divorce action on their
wards’ behalf absent clear legislation to the contrary, reasoning that the
marriage relationship is “exclusively personal” and “may be dissolved
only by the voluntary consent and the comprehending exercise of the
will of an injured spouse.” Wood v. Beard, 107 So. 2d 198, 199 (Fla. Dist.
Ct. App. 1958); see Flory v. Flory, 527 P.3d 250, 252–54 (Wyo. 2023).
These courts have typically expressed the concern that guardians should
not have such authority because “a spouse’s decision to divorce (or not)
is highly personal and imbued with considerations which may not
necessarily serve the spouse’s best interests or seem reasonable to other
people.” Flory, 527 P.3d at 259–60.26 As one court summarized the
concerns:
One rationale for the majority rule is that marriage is such
a personal commitment that only one of the spouses can
make a determination to end the marriage. . . . Courts have
26 See also In re Marriage of Gannon, 702 P.2d 465, 467 (Wash. 1985)
(en banc) (“The vast majority of courts hold that a guardian has no authority
to seek a divorce or dissolution . . . often rely[ing] upon the truism that a
decision to dissolve a marriage is so personal that a guardian should not be
empowered to make such a choice for the incompetent.”); Murray ex rel. Murray
v. Murray, 426 S.E.2d 781, 784 (S.C. 1993) (“The theory underlying the
majority view is that a divorce action is so strictly personal and volitional that
it cannot be maintained at the pleasure of a guardian, even if the result is to
render the marriage indissoluble on behalf of the incompetent.”); Boyd v.
Edwards, 446 N.E.2d 1151, 1156 (Ohio Ct. App. 1982) (describing marriage as
a “deeply personal right,” making it “wrong to compel a divorce under no-fault,
when neither party desires divorce”); Wood, 107 So. 2d at 199–200 (“As a part
of the basic concept, there is woven into the marriage fabric, regardless of the
marital grievance, the right by the aggrieved spouse to forgive or condone; even
the spouse who is guilty of marital wrongdoing has the right of condonation as
a defense. For condonation to be effected, since the marriage status is so
completely personal, the free exercise of the injured spouse’s will and the
prerequisite of comprehension are required.”).
19
expressed the concern that the wishes of the disabled
spouse not be overridden by the values and judgments of a
third party to this intimate relationship. Because there are
no offenses which, in and of themselves, effect an end to the
marriage, aggrieved spouses may elect to remain in
marriages that seem to be against their best interests for
personal, religious, moral, or economic reasons. . . . As a
practical matter, majority jurisdictions choose an absolute
bar as the lesser of two evils, protecting the possibility that
the incompetent spouse might elect to remain married if
competent, even if it effectively prevents the incompetent
spouse from ending the marriage while under the
adjudication of incompetency.
Nelson v. Nelson, 878 P.2d 335, 338 (N.M. Ct. App. 1994).
Consistent with this reasoning, some courts have held that a
guardian may maintain a divorce action if the ward initiated the
action—or at least expressed a clear desire to initiate the action—before
he was declared incompetent.27 This, as we have explained, was the
27 See, e.g., In re Salesky, 958 A.2d 948, 955 (N.H. 2008) (permitting
action when “the co-guardians were merely maintaining a divorce action that
the petitioner had brought before he was adjudged incompetent”); In re
Marriage of Burgess, 725 N.E.2d 1266, 1270 (Ill. 2000) (“While the risk that a
guardian may be acting contrary to a ward’s wishes may support the rule that
a guardian’s power to initiate a dissolution proceeding must be specified by the
legislature, this policy consideration does not justify requiring express
statutory authority for a guardian to continue a ward’s dissolution
proceeding.”); Northrop v. Northrop, No. CN94-9882, 1996 WL 861489, at *9
(Del. Fam. Ct. Dec. 30, 1996) (“[A]n absolute bar to the initiation and
maintenance of a divorce action on behalf of an incompetent spouse . . . could
lead to inequitable and untenable results in certain cases, especially when the
incompetent spouse, when competent, expressed a strong desire to be divorced
and when evidence establishes that but for the incompetency, that spouse
would have proceeded with a divorce action.”); In re Parmer, 755 S.W.2d 5, 7
(Mo. Ct. App. 1988) (“[By initiating] the dissolution proceeding before she was
declared incapacitated[,] . . . [the ward] demonstrated her desire that the
marriage be dissolved.”).
20
situation in Wahlenmaier.28 And others have held that a guardian may
initiate and maintain a divorce on the ward’s behalf if the guardian
establishes that the ward—despite whatever disabilities may justify the
guardianship—remains capable of making a reasoned decision to obtain
a divorce and has personally expressed that intent.29
The more recent and growing trend among American courts,
however, is to permit a guardian to initiate and maintain a divorce
action on the ward’s behalf even in the absence of some indication of the
28Here, Carlos himself filed for divorce shortly after he and Leticia
married, but he did not pursue the suit and the court dismissed it. Because
nothing in this record resolves the parties’ dispute over whether Carlos
changed his mind or was unable to continue due to mental incapacity, we
cannot equate these facts to those in Wahlenmaier.
29 See, e.g., Murray, 426 S.E.2d at 784 (“[W]e decline to impose an
absolute rule denying the right to seek a divorce if the spouse, although
mentally incompetent with respect to the management of his estate, is capable
of exercising reasonable judgment as to his personal decisions, is able to
understand the nature of the action and is able to express unequivocally a
desire to dissolve the marriage.”); In re Marriage of Higgason, 516 P.2d 289,
294 (Cal. 1973) (in bank) (“Such a proceeding may be brought on behalf of a
spouse under conservatorship by and through his or her guardian ad litem,
provided it is established that the spouse is capable of exercising a judgment,
and expressing a wish, that the marriage be dissolved on account of
irreconcilable differences and has done so.”), disapproved in part on other
grounds by In re Marriage of Dawley, 551 P.2d 323, 328–29 (Cal. 1976) (in
bank); Nelson, 878 P.2d at 338 (“[S]tates may bar a divorce action prosecuted
entirely by the guardian but allow the action to go forward when the ward is
capable of understanding the nature of the action and of expressing a desire to
end the marriage and does so.”); Syno v. Syno, 594 A.2d 307, 311 (Pa. Super.
Ct. 1991) (“[A]n incompetent spouse should be permitted to institute a divorce
proceeding through a guardian or guardian ad litem, provided the incompetent
is capable of exercising reasonable judgment as to personal decisions,
understands the nature of the action and is able to express unequivocally a
desire to dissolve the marriage.”).
21
ward’s personal intent.30 These courts have observed that a guardian’s
suit for divorce, although certainly a very personal decision, is not
“qualitatively different from any other deeply personal decision” that
guardians routinely make for their wards, “such as the decision to refuse
life-support treatment or the decision to undergo involuntary
sterilization.” Karbin v. Karbin ex rel. Hibler, 977 N.E.2d 154, 162 (Ill.
2012) (“[T]here is no reason why the guardian should not be allowed to
. . . make all types of uniquely personal decisions that are in the ward’s
best interests, including the decision to seek a dissolution of
marriage.”).31
More importantly, these courts have explained that denying a
guardian the authority to initiate a divorce on the ward’s behalf
completely deprives the ward of equal access to the courts based solely
30 See Flory, 527 P.3d at 253 (explaining that more recent decisions
trend toward allowing “a guardian to maintain an action for dissolution of
marriage on behalf of an incompetent adult ward” (quoting Ruvalcaba ex rel.
Stubblefield v. Ruvalcaba, 850 P.2d 674, 681 (Ariz. Ct. App. 1993)));
Nelson, 878 P.2d at 339 (“Jurisdictions deciding this issue in recent years have
increasingly adopted the minority view.”).
31 See also Gannon, 702 P.2d at 467 (“[I]n these days of termination of
life support, tax consequences of virtually all economic decisions, no-fault
dissolutions and the other vagaries of a vastly changing society, we think an
absolute rule denying authority is not justified nor in the public interest.”);
Nelson, 878 P.2d at 338–39 (“The rationale for the minority rule is that divorce
is only one of the many personal decisions that can and must be made on behalf
of adult incompetent wards by their guardians.” (citing Ruvalcaba, 850 P.2d at
681)); Ruvalcaba, 850 P.2d at 681 (“We share the Gannon court’s view that, in
this day and age, when guardians are permitted to refuse medical care on
behalf of their incompetent wards—surely a decision that is extremely
‘personal’ to that individual—prohibiting that same guardian from
maintaining an action for dissolution on behalf of the ward cannot be
justified.”).
22
on his disability32 and inequitably grants the competent spouse
“absolute, final control over the marriage,” Gannon, 702 P.2d at 467,
even when the incompetent spouse is at great risk of exploitation and
abuse.33 As one court summarized this concern, denying guardians the
ability to pursue a divorce on their wards’ behalf allows
the law to unfairly treat incompetent spouses, leaving
them at the complete mercy of the competent spouse
without consideration of their best interests, . . . even if the
ward was in danger as a result of being in the marriage . . .
which could result in physical or emotional abuse, financial
exploitation, or neglect of the incompetent spouse by the
‘competent’ partner.
Karbin, 977 N.E.2d at 163–64.
Despite these judicial descriptions of the competing policy
concerns, however, most courts have acknowledged that state
legislatures, and not the courts, possess the power to decide the policy
issue and address the guardian’s authority by statute. See Parmer, 755
S.W.2d at 7 (“The answer to Mr. Parmer’s argument lies in the statutes
32 See, e.g., Flory, 527 P.3d at 254 (“Another reason provided by minority
view courts to allow a guardian or conservator to prosecute a divorce is to
protect the ward’s right to access and obtain redress from the courts.”); Luster
v. Luster, 17 A.3d 1068, 1074 n.9 (Conn. App. Ct. 2011) (“The effect of the
plaintiff’s actions in the trial court has been to deny the defendant equal access
to the court and to a hearing on relief that he, but not the plaintiff, seeks, solely
on the basis of his incompetence.”).
33 See Salesky, 958 A.2d at 955 (finding these “countervailing policy
concerns” to be “particularly evident” when “the probate court found that the
respondent had withdrawn substantial funds from the petitioner’s bank
accounts while acting under a power of attorney”); Ruvalcaba, 850 P.2d at 681
(“Such a situation not only is inequitable, but also threatens to leave an
incompetent spouse without adequate legal recourse against potential
physical, emotional or financial abuse by the competent spouse.”).
23
themselves.”). Thus, even the “majority rule” has long provided that,
“absent statutory authorization, a guardian cannot maintain an action
on behalf of a mentally incompetent for the dissolution of the
incompetent’s marriage.” Murray, 426 S.E.2d at 783 (emphasis added)
(citing cases).34
The courts have not been unanimous, however, in the way they
construe such statutes. Some courts, motivated by their concerns about
the “purely personal” nature of marriage and divorce, have construed
the relevant statutes strictly, holding that a statute does not grant a
guardian authority to initiate a divorce simply by granting the general
authority to file suits on the ward’s behalf. See Flory, 527 P.3d at 252
(“Under the traditional rule, courts do not read statutes granting
guardians general powers to act on behalf of the ward as authorizing
divorce actions because the decision to divorce is ‘too personal and
volitional’ to be pursued at the ‘pleasure or discretion’ of a guardian.”
34 See also Flory, 527 P.3d at 252 (“The traditional majority rule
throughout the United States holds a guardian, conservator, or other legal
representative does not have the power to file or maintain an action for the
ward’s divorce unless that power is specifically granted by statute.” (emphasis
added)); Campbell v. Campbell, 5 So. 2d 401, 401 (Ala. 1941) (“The rule
sustained by the weight of authority is, in the absence of statute so authorizing,
an insane person cannot bring an action for divorce, nor can his guardian,
committee or next friend bring such action in his name and behalf.” (emphasis
added)); Nelson, 878 P.2d at 337 (“Most states that have addressed the issue
hold that, absent specific authority granted by statute, an incompetent or
insane spouse may not bring or continue an action for divorce, nor may such
an action be brought or maintained by a guardian on behalf of a ward.”
(emphasis added)); Wood, 107 So. 2d at 199 (“The rule is well established in
the United States by the overwhelming weight of authority that a guardian of
a mentally incompetent person cannot bring and maintain an action for divorce
on behalf of his insane ward unless there has been legislative enactment to
authorize such procedure.” (emphasis added)).
24
(quoting Brooks by Elderserve, Inc. v. Hagerty, 614 S.W.3d 903, 910, 914
(Ky. 2021))). Under this approach, guardians lack authority to sue for
divorce unless a statute expressly and specifically grants that power.
See Murray, 426 S.E.2d at 783 (“Although there are statutes in
practically every jurisdiction which give a guardian the general
authority to maintain actions on behalf of an incompetent, it is generally
held that these statutes do not apply to divorce actions unless the
statute expressly so states.”).
Most courts have disagreed with this construction, however, and
have held that a statutory grant of broad authority35 to “file suit” or
“bring an action” on the ward’s behalf includes the authority to file suit
for divorce, even if the statute does not expressly mention divorce.36 The
result may be different, of course, if the statute contains other language
that limits the broad authority as applied to divorce actions or imposes
35 Of course, a statute that does not include a broad grant and instead
grants only the authority to take specific actions without including divorce
actions does not authorize the guardian to initiate a divorce action. See Flory,
537 P.2d at 256 (“Unlike guardianship statutes in some states that have
recognized an implied right for guardians to sue for the ward’s divorce, our
statutes do not contain a general grant of authority to a guardian to pursue
any legal action for the ward or to exercise the same rights parents have for
their children.”), 257 (“The legislature’s choice to specifically authorize a
guardian to file certain types of suits while omitting any right to bring a divorce
action indicates the legislature did not intend to give a guardian power to sue
for his ward’s divorce.”).
36 See Salesky, 958 A.2d at 954 (“Under the catchall provisions, a
probate court may expressly grant this authority to a guardian when it deems
such action ‘desirable for the best interests of the ward.’”); Nelson, 878 P.2d at
338 (“[M]ost minority-rule courts construe existing statutes authorizing the
guardian to pursue and defend civil claims in the interests of their ward to
include authority to bring an action for divorce.”).
25
particular requirements for divorce actions.37 But in the absence of such
limiting language, most courts have construed statutes that broadly
authorize guardians to “file suit” or “bring a civil action” to include a
divorce action because, after all, “an action for dissolution of marriage is
a civil action.” Luster, 17 A.3d at 1080. As one court explained, such
statutes grant “exceedingly broad powers” that are effectively the “same
rights, powers, and duties respecting the ward as a parent has
respecting a child,” which includes “the authority to interfere in the most
intimately personal concerns of an individual’s life.” Nelson, 878 P.2d
339–40.38
We acknowledge the policy concerns expressed by all of these
courts. On the one hand, we too have recognized that marriage is a
deeply “personal affiliation,” Osterberg v. Peca, 12 S.W.3d 31, 46 (Tex.
2000), that a divorce action is “purely personal to the parties,” Baker,
687 S.W.3d at 289 & n.3, and that all persons enjoy “individual
autonomy in making decisions and conduct relating to
marriage . . . [and] family relationships,” City of Sherman v. Henry, 928
S.W.2d 464, 467 (Tex. 1996) (citing Whalen v. Roe, 429 U.S. 589, 600 &
n.26 (1977)). On the other hand, we have also recognized that a person
37 See Ruvalcaba, 850 P.2d at 678–79 (holding that a general grant is
sufficient in the absence of statutory language excluding divorce actions from
the grant); In re Marriage of Ballard ex rel. Storkel, 762 P.2d 1051, 1052 (Or.
Ct. App. 1988) (holding statute authorizing guardian to pursue suits for ward
without specifying any specific procedure required for divorce actions
authorized guardian to pursue suit ward had initially filed for divorce).
38See Tenet Hosps. Ltd. v. Rivera, 445 S.W.3d 698, 705 (Tex. 2014)
(noting that Texas’s technical statutory requirements for guardianships
“bring guardians in line with the powers and duties that parents possess”).
26
placed under guardianship does not lose his constitutional or legal
rights,39 which expressly include the right of access to the courts, 40 and
that guardianships can only achieve their purpose when the guardian
possesses the powers necessary to “promote and protect the well-being
of the incapacitated person.” TEX. EST. CODE § 1001.001(a). After all, as
the United States Supreme Court has explained, “The whole theory of
guardianships is to protect the ward during his period of incapacity to
protect himself.” Oyama v. California, 332 U.S. 633, 643–44 (1948).
These competing concerns require, as one court described it, a
policy choice between “the lesser of two evils”:41 Should the law permit
a guardian to pursue a divorce the ward might not have chosen to
pursue, or should it permit a competent spouse to have complete and
total control over the marriage, even when the ward is at risk of neglect,
exploitation, or abuse? See Karbin, 977 N.E.2d at 163–64; Gannon, 702
P.2d at 467. This is the very type of policy choice on which we
consistently defer to the Legislature, as the duly elected policy-making
branch of government.42
39 See Barclay v. Campbell, 704 S.W.2d 8, 11 (Tex. 1986) (“A person
suffering from a mental illness is guaranteed all the rights, benefits,
responsibilities and privileges afforded by the constitutions and laws of the
United States and Texas.”).
40See TEX. CONST. art. I, § 13 (“All courts shall be open, and every
person for an injury done him, in his lands, goods, person or reputation, shall
have remedy by due course of law.”).
41 Nelson, 878 P.2d at 338.
42 See, e.g., Campbellton Rd., Ltd. v. City of San Antonio, 688 S.W.3d
105, 114 (Tex. 2024) (explaining that we defer to the Legislature’s policy
choices on whether and when to waive sovereign immunity); Morath v. Tex.
27
Unfortunately, the Texas Legislature has not made that choice
clear in the Texas Estates Code. The Code contains two separate
provisions that address a guardian’s power to file suit on the ward’s
behalf. The first broadly expresses that “the guardian of the estate of a
ward is entitled to . . . bring and defend suits by or against the ward.”
TEX. EST. CODE § 1151.101(a)(4). The second is more specific, providing
that “[t]he guardian of the estate of a ward appointed in this state may
commence a suit for: (1) the recovery of personal property, debts, or
damages; or (2) title to or possession of land, any right attached to or
arising from that land, or injury or damage done.” Id. § 1151.104(a).
Linda, of course, relies on Section 1151.101(a), noting that it
broadly authorizes guardians to “bring . . . suits by . . . the ward” without
any limitation. And Leticia, of course, relies on Section 1151.104(a),
noting that it only authorizes guardians to bring two specific types of
suits, neither of which includes a suit for divorce. Leticia also notes that
Section 1151.101(a)’s grant of broad authority is expressly made
“[s]ubject to Subsection (b),” which provides that a guardian’s
“management of a ward’s estate . . . is governed by the provisions of this
title.” Id. § 1151.104(b). Because the title’s provisions include Section
1151.104(a), she reasons that the broad grant of authority to bring suit
is limited to the two types of suits specified.
Taxpayer & Student Fairness Coal., 490 S.W.3d 826, 846 (Tex. 2016) (deferring
to Legislature’s policy choices on how to fund public schools); Strickland v.
Medlen, 397 S.W.3d 184, 196 (Tex. 2013) (deferring to Legislature to make
policy choices on how to compensate for loss of a family pet); Smith v. Merritt,
940 S.W.2d 602, 603–04 (Tex. 1997) (deferring to Legislature’s policy choice to
prohibit liability of a social host).
28
In addition, we note that the Family Code acknowledges that
guardians possess the authority to file suit for annulment of a marriage
on a ward’s behalf. See TEX. FAM. CODE § 6.108(a) (authorizing courts to
grant an annulment “on the suit of the party or the party’s guardian or
next friend, if the court finds it to be in the party’s best interest to be
represented by a guardian or next friend” and makes additional
findings). On the one hand, if the Estates Code only authorized
guardians to commence the two types of suits described in Section
1151.104(a), a guardian could never file a suit for annulment as the
Family Code contemplates. On the other hand, it may be true that if the
Legislature wanted to acknowledge that guardians possess the
authority to file suit for divorce on a ward’s behalf, it would have done
so.
In light of this lack of clarity, the Legislature may wish to
consider amending the Estates Code or the Family Code to plainly
express its policy choice on this issue. In the meantime, however, we
need not definitively construe the current statutes to resolve this case.
If the Estates Code empowers courts to authorize guardians to initiate
a suit for divorce on a ward’s behalf, it also imposes two limitations on
that authority. First, the guardian must obtain a court order that
expressly authorizes the guardian to pursue the divorce on the ward’s
behalf. Although Section 1151.102, which lists actions a guardian may
take only “if authorized by court order,” does not include filing divorce
suits in its list, see TEX. EST. CODE § 1151.102, we find this requirement
in the language of Sections 1151.001 and 1151.351.
29
Section 1151.001 provides that an “incapacitated person for
whom a guardian is appointed retains all legal and civil rights and
powers except those designated by court order as legal disabilities by
virtue of having been specifically granted to the guardian.”
Id. § 1151.001 (emphasis added). Similarly, Section 1151.351(a)
provides that a “ward has all the rights, benefits, responsibilities, and
privileges granted by the constitution and laws of this state and the
United States, except where specifically limited by a court-ordered
guardianship or where otherwise lawfully restricted.” Id. § 1151.351(a)
(emphasis added). And Section 1151.351(b) provides, “[u]nless limited
by a court or otherwise restricted by law, a ward is authorized . . . to vote
in a public election, marry, and retain a license to operate a motor
vehicle, unless restricted by the court.” Id. § 1151.351(b). Although
these sections do not expressly mention the right to sue for divorce, a
divorce (as explained above) is a matter that is “purely personal to the
parties,” Baker, 687 S.W.3d at 289 & n.3; see Whatley, 649 S.W.2d at
299, and a matter of “individual autonomy,” City of Sherman, 928
S.W.2d at 467. Because the Family Code expressly grants the right to
divorce based on specified grounds, that right is one of the “legal rights”
a ward himself retains unless it is specifically granted to the guardian
by court order.43 We thus conclude that, to whatever extent the Estates
Code may permit a guardian to initiate a suit for divorce on the ward’s
43 See, e.g., Weatherly v. Byrd, 566 S.W.2d 292, 293 (Tex. 1978) (“[W]e
hold that the right to revoke a revocable trust . . . is a purely personal right of
the settlor and does not vest in the guardian[;] . . . the guardian must apply to
a court of competent jurisdiction for authorization to revoke the trust.”).
30
behalf, it requires the guardianship court to expressly grant the
guardian that authority.
Second, if the Estates Code authorizes a guardian to obtain a
divorce on the ward’s behalf, the filing of the divorce action and the later
granting of the divorce must be in the ward’s best interest and promote
and protect the ward’s well-being. We find this requirement in Section
1001.001 of the Estates Code, which provides that a court may grant a
guardian authority “only as necessary to promote and protect the
well-being of the incapacitated person.” TEX. EST. CODE § 1001.001(a).
Indeed, a court may not appoint a guardian at all unless it first finds by
clear and convincing evidence that doing so “is in the proposed ward’s
best interests.” Id. §§ 1101.101(a)(1)(B), 1104.101. Under the Estates
Code, the ward’s best interests and well-being must be the key
consideration for everything a guardian does on the ward’s behalf.44 To
the extent a court can authorize a guardian to pursue a divorce on the
ward’s behalf, the guardianship court must expressly find that granting
such authority is in the ward’s best interest. But because the question
of whether a divorce sought by a guardian is ultimately in the ward’s
best interest can only be answered based on the evidence submitted in
the divorce proceeding, the court that grants the divorce must also make
the ultimate finding that the divorce sought by the guardian is in the
44 See, e.g., TEX. EST. CODE §§ 1023.009 (best interests required to
transfer a guardianship or appoint a new guardian), 1104.001(a) (best interests
required to appoint separate persons as guardians of a ward’s person and
estate), 1151.055(g)(1)(c) (best interests required to authorize certain relatives
to have access to the ward), .056(g)(4) (best interests required to authorize a
guardian to withhold notice of ward from a relative), 1203.153(a) (best
interests required to appoint a successor guardian).
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ward’s best interest and will promote and protect the ward’s
well-being.45
The parties here disputed both whether the guardianship court
expressly granted Linda the authority to pursue this divorce on Carlos’s
behalf46 and whether the divorce would promote Carlos’s best interests
and well-being. But regardless of those disputes, neither the
guardianship court nor the divorce court ever expressly found that
pursuing or granting the divorce would be in Carlos’s best interest and
promote his well-being. We must therefore vacate the trial court’s
divorce decree.
It may be true that a divorce was in Carlos’s best interest at the
time the trial court granted it. Linda did in fact present the trial court
with some evidence of marital friction, or worse, during Carlos’s final
years with Leticia. Were Carlos still living, we could definitively decide
whether the Estates Code permits guardians to pursue a divorce for the
ward and, if so, could remand this cause to the divorce court so that
Linda could obtain the finding that a grant of divorce is in Carlos’s best
45 This requirement is consistent with the Legislature’s requirement
that a court that grants an annulment based on a suit filed by a guardian must
find that the guardian’s representation of the ward for that purpose is in the
ward’s best interest. See TEX. FAM. CODE § 6.108(a).
46 The guardianship court’s March 6, 2013 order authorized Mathis to
“file, prosecute or defend any litigation, including divorce proceedings on
[Carlos]’s behalf,” and its supplemental order a month later authorized Linda
“to join with the Permanent Guardian of the Estate [Mathis] to prosecute,
defend and otherwise participate in a divorce action on behalf of the Ward.”
Leticia argues that the supplemental order authorized Linda to participate
with Mathis in the Second Divorce Proceeding but did not authorize Linda to
independently file the Third Divorce Proceeding after Mathis resigned.
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interest and would promote and protect his well-being. But because he
has passed, Linda can no longer demonstrate these requirements. We
therefore decline to definitively decide the authority issue and must
dismiss the suit. We do so not because the way the marriage ended will
not affect Leticia’s interests under Dunn but because the courts can no
longer make the findings necessary to authorize the divorce. 47
47 In her third issue, Leticia also challenges the divorce decree’s validity
by arguing that the Texas Family Code does not permit a divorce on the ground
that the parties lived apart for at least three years when the “living apart” was
not “voluntary” by at least one spouse. The relevant Family Code provision
states only that “[t]he court may grant a divorce in favor of either spouse if the
spouses have lived apart without cohabitation for at least three years.” TEX.
FAM. CODE § 6.006. We held long ago that this provision does not permit a
divorce when the spouses voluntarily and mutually separate for a period less
than the statute requires, but we did not address whether the ground applies
if the separation exceeds the length required but is not voluntary or mutual.
Schulz v. L.E. Whitham & Co., 27 S.W.2d 1093, 1097 (Tex. 1930).
Most courts in other jurisdictions have construed similar statutes to
require that at least one spouse must intend to dissolve the marriage and
voluntarily cause the separation. See Sinha v. Sinha, 526 A.2d 765, 767 (Pa.
1987) (holding one spouse must intend to dissolve the marital union before the
time period commences and clearly communicate that intent to the other);
Hooker v. Hooker, 211 S.E.2d 34, 36 (Va. 1975) (per curiam) (“[T]he separation
[must] be coupled with an intention on the part of at least one of the parties to
live separate and apart permanently, and . . . this intention must be shown to
have been present at the beginning of the uninterrupted two year period of
living separate and [a]part without any cohabitation.”); Caye v. Caye, 211 P.2d
252, 254 (Nev. 1949) (“The status exists whenever the marital association is
severed or when married persons intend to live apart because of their mutual
purpose to do so, or because one of the parties, with or without the acquiescence
of the other, intends to disrupt the marital relationship.”); Otis v. Bahan, 26
So. 2d 146, 148 (La. 1946) (“To constitute the voluntary separation required by
the statute, it must appear that the separation upon the part of at least one of
the parties was voluntary in its inception and was continuous throughout the
statutory period.”); Byers v. Byers, 22 S.E.2d 902, 906 (N.C. 1942) (“There must
be at least an intention on the part of one of the parties to cease cohabitation,
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IV.
Conclusion
We conclude that Carlos’s death during the pendency of Leticia’s
appeal from the divorce decree did not moot the appeal. We also conclude
that, to whatever extent the Estates Code may permit a court to
authorize a guardian to pursue a divorce on the ward’s behalf, it at least
requires finding that pursuing and granting the divorce would be in the
ward’s best interests and protect and promote his well-being. Because
Linda did not obtain such findings from the guardianship court or the
divorce court and cannot obtain them now, we reverse the court of
and this must be shown to have existed at the time alleged as the beginning of
the separation period; it must appear that the separation is with that definite
purpose on the part of at least one of the parties.”); Dailey v. Dailey, 463 N.E.2d
427, 429 (Ohio Ct. App. 1983) (“It is generally accepted that before separation
can be used as a ground for divorce, the separation must be voluntary.”) (citing
authorities).
But the Texas appellate courts that have addressed the issue have not
construed the living-apart provision to include a voluntariness requirement, or
any other requirement or limitation. See Fields v. Fields, 399 S.W.2d 958,
958–59 (Tex. App.—Waco 1966, no writ) (holding that the living-apart
provision “require[s] the spouse to live apart without cohabitation for 7 years;
and the cause of the separation, and subsequent conduct, of the one seeking
divorce are not proper subjects of inquiry”); McGinley v. McGinley, 295 S.W.2d
913, 916 (Tex. App.—Galveston 1956, no writ) (“Where mere living apart for
seven years is the basis for divorce, fault or responsibility for the separation is
not a material fact.”); Robertson v. Robertson, 217 S.W.2d 132, 135 (Tex. App.—
Fort Worth 1949, no writ) (“It will be noted that the Act nowhere includes the
words ‘voluntary’ or ‘mutual,’ but clearly indicates that independent of any
other provisions of the statutes there is ground for divorce of the parties if they
have lived apart without cohabitation for as long as ten years.”).
Because we conclude that the divorce decree is invalid on other grounds,
we need not reach this issue to resolve this case. The Legislature may want to
consider amending Section 6.006 to clarify its policy choice on this issue as
well.
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appeals’ judgment finding this appeal moot, vacate the trial court’s
divorce decree, and dismiss the suit.
Jeffrey S. Boyd
Justice
OPINION DELIVERED: April 25, 2025
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