In Estate of Tillotson, an administrator of a decedent’s estate filed a turn over motion to have the decedent’s husband turn over the decedent’s community property interest in certain accounts. No. 05-20-00258-CV, 2021 Tex. App. LEXIS 2097 (Tex. App.—Dallas March 18, 2021, no pet. history). After the trial court granted the motion, the surviving spouse appealed. The court of appeals first held that the administrator had the power to file a motion to seek the partition of community property:
The Estates Code provides that at any time after the first anniversary of the date original letters testamentary or of administration are granted, an executor, administrator, heir, or devisee of a decedent’s estate, by written application filed in the court in which the estate is pending, may request the partition and distribution of the estate. See Est. § 360.001(a). The Estates Code further provides that if an intestate deceased spouse is survived by a child, the deceased spouse’s undivided one-half interest in the community estate passes to the deceased spouse’s children. See id. § 201.003… Accordingly, we conclude Hoyl in her capacity as administratrix could request partition of the community property and that the trial court did not err by granting Hoyl’s request to partition community property.
Id. The court discussed that Estates Code section 360.253(a) allows a surviving spouse to seek a partition, but holds that it does not make that right an exclusive one to the surviving spouse.
The surviving spouse also argued that he was entitled to maintain possession and control over all community property that was legally under his management during the marriage. The court disagreed and noted that the Estates Code provides that the surviving spouse is entitled to retain possession and control of the community property that was legally under the sole management of the surviving spouse during the marriage and exercise over that property any power authorized by the Estates Code if there is no administration pending on the deceased spouse’s estate. Id. (citing Tex. Est. Code § 453.009(b)). The court held that that section only applies when there is no administration pending and that the trial court did not err in ordering the surviving spouse to turn over amounts related to the Rollover IRA, Roth IRA, and Fidelity individual stock account.
Id. The court of appeals affirmed the trial court’s order in part.