Guardianship Law: An Overview
With our aging population, second marriages and the blended families that arise therefrom, both elder law and family law attorneys are witnessing an uptick in divorce proceedings filed by adult children of elderly parents. These divorce filings are often made in an adult child’s role as guardian of their parent or as agent under power of attorney. Another correlation between our aging population and the increase in divorce proceedings is an increase in guardianship proceedings being initiated by adult children of elderly parents, or sometimes by the other spouse in retaliation for the filing of the divorce proceeding. While these issues are quite broad and could conceivably consume a multi-day CLE program, this article will focus on the general procedures of guardianships, with an emphasis on subject matter jurisdiction of probate courts when a divorce proceeding overlaps with a guardianship proceeding, and will share practical considerations for family law practitioners to keep in mind when they find themselves in the crosshairs of guardianship law and family law.
The statutory scheme for guardianships can be found in Title 3 of the Texas Estates Code. Notably, Title 3 begins with the purpose of guardianship and the reason it warrants its own section in the Texas Estates Code, which is to “promote and protect the well-being of [an] incapacitated person.”[1] Generally speaking, an incapacitated person is defined as someone who is mentally, physically, or legally incompetent.[2] The Texas Estates Code’s definition of an incapacitated person also includes minors and adults who are unable to care for their own physical health or manage their own affairs.[3]
A guardianship proceeding over an allegedly incapacitated person, or, in other words, a “proposed ward,” can be initiated in one of two ways: (1) by filing an application requesting a guardianship over the proposed ward, or (2) by the court itself after someone has filed an information or doctor’s letter regarding the proposed ward.[4] However, guardianship proceedings are typically initiated by the filing of an application by someone close to or involved with the proposed ward. Chapter 1101 of the Texas Estates Code sets forth the pleading requirements for an application for guardianship and essentially provides a checklist of the information required to be included in an application for guardianship. Chapter 1101 also lays out the burdens of proof that the person seeking a guardianship must meet, and the findings that the court must make, to successfully obtain a guardianship over the proposed ward.[5]
Regardless of whether a guardianship proceeding is initiated by the filing of an application or an information letter, another procedural hurdle with guardianships is determining what court has jurisdiction to consider such a case. The Texas Estates Code confers jurisdiction over a guardianship proceeding to “a court exercising original probate jurisdiction.”[6] As to which court has original probate jurisdiction, that can vary by county and generally depends on the structure of the court system in the county in which the guardianship will be pending. The first step to answering this question is determining whether the county has a statutory probate court or not. In counties with a statutory probate court, which are typically in larger metropolitan areas of Texas, the statutory probate court possesses exclusive jurisdiction over all guardianship proceedings.[7] Less-populated counties typically do not have a statutory probate court, and instead have a county court and/or a county court at law. In a county in which there is no statutory probate court or county court at law exercising original probate jurisdiction, the county court has original jurisdiction of guardianship proceedings.[8] In a county in which there is no statutory probate court, but in which there is a county court at law exercising original probate jurisdiction, the county court at law exercising original probate jurisdiction and the county court have concurrent original jurisdiction of guardianship proceedings, unless otherwise provided by law.[9]
Subject Matter Jurisdiction: Guardianship v. Divorce
While subject matter jurisdiction for guardianship proceedings is governed by the Texas Estates Code, subject matter jurisdiction for divorce proceedings is governed by the Texas Constitution and the Texas Government Code. Article 5, Section 8 of the Texas Constitution grants district courts original jurisdiction over all actions, proceedings, and remedies, except in cases where exclusive, appellate, or original jurisdiction may be conferred by the Texas Constitution or other law on some other court, tribunal, or administrative body.[10] A divorce proceeding is an in rem action over which the district court has subject matter jurisdiction.[11] However, a divorce proceeding may also proceed in a statutory county court depending on the amount in controversy.[12]
The differences in subject matter jurisdiction between guardianship and divorce proceedings is further complicated by the fact that the courts that handle these cases may vary from county to county. Many counties have specifically designated courts for family law cases in the Government Code.[13] Even if the Government Code does not have a specifically designated family court for a particular county, the district judges are empowered with the authority to adopt rules for the filing of cases, assignment of cases for trial, and the distribution of the work amongst the courts.[14] As a result, district judges may make rules and enter orders amongst themselves to divide cases in a certain manner that they determine is best for judicial efficiency. While this may not be a strictly jurisdictional issue, because all the district courts still retain subject matter jurisdiction as provided by the Texas Constitution, it is a practical consideration for the filing of divorce cases.
These variations in subject matter jurisdiction between divorce and guardianship mean that it is rare for a guardianship and a divorce to be pending in the same court unless the jurisdictional stars align. If the cases were ever in the same court, it would likely be in a smaller county in Texas where there was no statutory probate court to hear the guardianship. For example, a divorce proceeding that is filed within the jurisdictional limits of the statutory county court may be heard alongside a contested guardianship proceeding that is also filed or transferred to that same court. Another example may be in a small county that has no statutory probate court or county court at law exercising original probate jurisdiction, and a guardianship proceeding that becomes contested is transferred to a district court.[15] By contrast, in larger counties that do have statutory probate courts, the guardianships and divorces will never be filed in the same court because the statutory probate court has exclusive jurisdiction of guardianships and divorce cases are always filed in the district courts or a statutory county court.[16]
These nuances in jurisdiction cause understandable confusion for practitioners who are participating in concurrent divorce and guardianship proceedings that involve the same parties. The “first filed” rule, or dominant jurisdiction rule, will not apply when evaluating whether a divorce proceeding versus a guardianship proceeding should proceed first because the two cases involve different disputes and the respective subject matter for each case will often invoke the jurisdiction of different courts.[17]
However, even if the divorce and guardianship are filed in different courts, the Texas Estates Code confers jurisdiction on statutory probate courts to hear matters appertaining to or incident to a guardianship estate.[18] In the case of In re Graham, the parties to the divorce were Richard and Gitta Milton.[19] Analyzing Section 608 of the Probate Code (now Section 1022.007 of the Estates Code), the Texas Supreme Court determined that the divorce was a matter related to Mr. Milton’s guardianship estate.[20] As a result, the Court held that the statutory probate court had authority to transfer to itself from a district court a divorce proceeding when one party to the divorce is a ward of the probate court.[21]
One important distinction to be made about the parties in Graham is that divorce involved a spouse (Richard Milton) who had already been determined by the probate court to be incapacitated and a guardian had been appointed. Cases where a guardianship and a divorce are both pending and a party to a divorce has not been determined to be incapacitated are more complicated. If the guardianship is pending in a statutory probate court, a party may ask for a transfer of the divorce to that court under Section 1022.007 of the Texas Estates Code. However, the transfer request is not guaranteed to be granted, and probate judges are often hesitant to allow the transfer because they do not typically preside over divorces and may be uncomfortable in doing so. Depending on the circumstances, a party may strategically choose to keep the divorce and guardianship separated in their respective courts so that each case may be presided over by a judge with experience in that subject matter. Further, if the proceedings are pending in a county without a statutory probate court, a transfer under Section 1022.007 would not be permitted, and the cases would have to remain segregated in their respective courts.
Texas Enters the Guardian Divorce Debate: How Benavides Set the Stage Without Choosing Sides
Beyond jurisdictional complexities lies an even more fundamental question that has divided courts nationwide: Can a guardian initiate divorce proceedings on behalf of their incapacitated ward? This seemingly straightforward question pits the protection of vulnerable adults against the preservation of personal autonomy in marriage, creating a legal battlefield where the stakes involve both individual liberty and family safety. The Texas Supreme Court finally addressed this contentious issue in In re Marriage of Benavides, No. 23-0463, 2025 WL 1197404 (Tex. Apr. 25, 2025)—but rather than choosing sides, the Court outlined an entirely new framework that would ensure protection while leaving the ultimate policy choice to the Legislature.
The Benavides Framework: Procedural Innovation Over Policy Choice
The Benavides case—featuring a wealthy Laredo patriarch with dementia, his fourth wife, competing inheritance claims, and a daughter seeking to protect her father from alleged exploitation—forced the Court to finally provide clarity. Rather than making the difficult policy choice between protection and autonomy, the Court outlined a sophisticated procedural framework that would govern guardian divorces if such authority exists, requiring two mandatory judicial safeguards.
First, the guardianship court must expressly authorize the guardian to pursue the divorce. General litigation authority is not sufficient—the court must specifically consider and approve divorce proceedings as within the guardian’s powers.
Second, both courts must find that divorce serves the ward’s best interests. The guardianship court must determine that granting divorce authority promotes the ward’s well-being, and the family court must independently conclude that actually granting the divorce is in the ward’s best interests and promotes and protects the ward’s well-being.
The Court’s conditional framework acknowledges compelling arguments on both sides while explicitly refusing to make the ultimate policy choice about whether such authority should exist. The Court explicitly noted that “the Legislature may wish to consider amending the Estates Code or the Family Code to plainly express its policy choice on this issue.”[22] Any future guardian divorce petition would need to navigate this two-court, two-finding framework if such authority is established.
The decision’s practical requirements would transform guardian divorce practice entirely. Guardians would need to obtain express authorization before filing and build compelling evidence that divorce truly serves the ward’s well-being. Courts could not simply apply standard no-fault divorce criteria—they would need to independently evaluate whether dissolution promotes the specific ward’s interests.
What This Means Going Forward
Benavides maps the doorway without deciding whether to open it—establishing what procedures would be required if guardian divorces are permitted. Should Texas ultimately permit guardian divorces, family lawyers would need to navigate two courts and meet high evidentiary burdens under the Benavides framework. The decision explicitly invites legislative action, urging policymakers to choose between autonomy and protection. Until then, Texas practitioners operate in an uncertain landscape—one where the fundamental question remains unanswered.
Practice Guidance, Ethical Considerations, and Conclusion
When guardianship and divorce proceedings are concurrent or intersect with one another, practitioners should carefully consider the order in which they proceed with the divorce or guardianship proceedings to ensure that the constitutional and due process rights of the alleged incapacitated person are protected. In guardianships, the Texas Estates Code requires the appointment of an attorney ad litem to represent the legal interests of the proposed ward in that proceeding.[23] However, the attorney ad litem’s authority to represent the proposed ward is limited to the guardianship proceeding, unless the probate court enters an order specifying otherwise. If the proposed ward has hired their own counsel, the probate court will need to conduct a hearing to determine if the proposed ward has the ability to retain their own counsel.[24] The proposed ward’s ability to retain their own counsel in the guardianship would also affect their ability to do so in the divorce. The retention and authority of legal representation for the proposed ward in both the guardianship and the divorce proceedings is a crucial issue to determine at the beginning of the proceedings to ensure the proposed ward’s due process rights are protected.
Another consideration for practitioners is the proposed ward’s ability to enter into agreed orders in the divorce or participate in other negotiations or agreements. Findings related to a party’s capacity or incapacity should be handled by the probate court, not the divorce court, and these determinations directly affect the way the divorce proceeds. For example, if a divorce proceeding goes forward with an alleged incapacitated person as a party, the parties and the family court run the risk that orders or agreements entered into by the alleged incapacitated party may be void or voidable. A possible solution is to ask the probate court to appoint a temporary guardian for the alleged incapacitated party with the authority to participate in the divorce proceeding. Alternatively, the divorce could be abated pending a final determination of the need for a guardianship for the proposed ward. If a permanent guardian is appointed, the guardian is the proper party to the divorce on behalf of the proposed ward. Ultimately, the circumstances and the level of incapacity of the proposed ward will be a driving factor as to how to proceed in each individual case.
Other than procedural and practical issues that may arise during guardianship-divorce proceedings, there are also ethical issues when working with a client who may lack capacity. Rule 1.17 of the Texas Disciplinary Rules of Conduct provides that if an attorney reasonably suspects a client to have diminished capacity, the attorney may take reasonably necessary protective action such as seeking the appointment of a guardian or attorney ad litem for the client or submitting an information letter to a court with jurisdiction to initiate a guardianship proceeding for the client. However, practitioners should be warned that transforming your role from advocate to applicant with respect to seeking a guardianship for your client may create a conflict of interest and prohibit continued representation in the divorce proceeding.
Practitioners should also be aware of circumstances when a guardianship or divorce proceeding is used as a tool to retaliate against the other spouse. For example, a client may retain you to divorce his or her spouse and after the divorce proceeding has been initiated, the other spouse files for a guardianship over your client claiming your client lacks capacity to even seek a divorce. Is the spouse retaliating or does your client truly lack capacity?
As the “baby boomer” generation ages and the elderly population increases, practitioners can expect to see an increase in the overlap of guardianships and divorce proceedings, and for some of the circumstances and issues discussed in this article to come across their desk. And as this article highlights, there are procedural nuances to guardianships and divorce proceedings that can become even more complicated when these two practice areas intersect. Although Benavides and Graham provide some guidance for practitioners when they find themselves caught in-between a guardianship and divorce proceeding, there are still jurisdictional and practical issues that these cases do not address. Until such issues are addressed by the legislature or more case law, practitioners should be familiar with the basics of guardianship law in the event a divorce proceeding turns in an issue of one spouse’s capacity, or lack thereof.
[1] Tex. Est. Code Ann. § 1001.001.
[2] Tex. Est. Code Ann. § 1001.003.
[3] Tex. Est. Code Ann. § 1002.017.
[4] Tex. Est. Code Ann. § 1101.001 (guardianship proceeding initiated by application); Tex. Est. Code Ann. § 1102.003 (guardianship proceeding initiated by filing an information letter with the court).
[5] Tex. Est. Code Ann. § 1101.001.
[6] Tex. Est. Code Ann. § 1022.001.
[7] Tex. Est. Code Ann. § 1022.005.
[8] Tex. Est. Code Ann. § 1022.002(a).
[9] Tex. Est. Code Ann. § 1022.002(b).
[10] Tex. Const. art. V, § 8; see also Tex. Gov’t Code Ann. § 24.007.
[11] Blenkle v. Blenkle, 674 S.W.2d 501, 503 (Tex. App—El Paso 1984, no writ).
[12] Tex. Gov’t Code Ann. § 25.003(c)(1).
[13] See Tex. Gov’t Code Ann. §§ 24.601–24.644.
[14] Tex. Gov’t Code Ann. § 24.024.
[15] Tex. Est. Code Ann. § 1022.003.
[16] Tex. Est. Code Ann. § 1022.005; Tex. Const. art. V, § 8; Tex. Gov’t Code Ann. § 24.007.
[17] See In re King, 478 S.W.3d 930, 933 (Tex. App.—Dallas 2015, orig. proceeding) (when a claim asserted in a second suit is outside the jurisdictional limits of the court where the first suit was filed, the first court cannot assert dominant jurisdiction over the claim in the second suit).
[18] Tex. Est. Code Ann. § 1022.007; In re Graham, 971 S.W.2d 56, 59 (Tex. 1998).
[19] In re Graham, 971 S.W.2d at 57.
[20] Id. at 60.
[21] Id.
[22] Benavides, 2025 WL 1197404, at *13.
[23] Tex. Est. Code Ann. § 1054.001.
[24] Tex. Est. Code Ann. § 1054.006.