When an elderly person develops dementia or another condition that renders them mentally incapacitated, family members often step in as guardians to manage their affairs. The guardian pays bills, manages property, and makes healthcare decisions. But what happens when the incapacitated person is married, and family members believe the marriage should end? Can a guardian file for divorce on behalf of someone who can no longer express their own wishes about their marriage?
This question sits at the intersection of guardianship law and family law. It forces courts to balance competing concerns: protecting vulnerable adults from potential exploitation while respecting the deeply personal nature of marriage and divorce. The Texas Supreme Court recently addressed this tension in In re Marriage of Benavides, 712 S.W.3d 561 (Tex. 2025). This case provides an opportunity to examine whether Texas law permits a guardian to pursue divorce on behalf of an incapacitated ward, and if so, what requirements must be satisfied.
Facts & Procedural History
Carlos was a prominent member of one of Laredo’s oldest families. The family had substantial assets. In September 2004, Carlos married his fourth wife, Leticia. Both spouses signed agreements stipulating that no community property would be created during the marriage.
About seven months after the marriage, Carlos filed for divorce. While that proceeding was pending, a physician diagnosed Carlos with dementia. The court dismissed the divorce case in February 2007. The parties disputed whether Carlos changed his mind or became unable to pursue it due to his deteriorating condition.
By the end of 2007, Carlos had signed documents adding Leticia’s name to his bank accounts and conveying property to her. Leticia maintained that Carlos gave her full authority and told her, “All that I have is yours.” Carlos’s adult daughter, Linda, contended that Leticia took advantage of Carlos’ incapacity.
In September 2011, Linda and her brothers sought the appointment of a guardian over Carlos. About two weeks later, Carlos signed a will leaving his entire estate to Leticia. The guardianship court found that Carlos was totally incapacitated in 2011 and incompetent to sign the will. The court appointed a guardian over Carlos.
In March 2018, after Linda became the permanent guardian, she filed for divorce on Carlos’s behalf. She sought a divorce based on the fact that Carlos and Leticia had lived apart without cohabitation for more than three years. The trial court granted the divorce in September 2020. Carlos died two weeks after Leticia filed her appeal.
Guardian Authority Under the Texas Estates Code
The question in this case involves the scope of a guardian’s authority under the Texas Estates Code. Section 1151.101(a)(4) provides broadly that “the guardian of the estate of a ward is entitled to … bring and defend suits by or against the ward.” This language appears to grant guardians expansive authority to commence any type of lawsuit without limitation.
However, Section 1151.104(a) provides more specifically that a guardian “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.” This provision lists only two specific types of suits, neither of which obviously includes a divorce action.
The relationship between these provisions creates ambiguity. Section 1151.101(a) states that its broad grant of authority is “[s]ubject to Subsection (b),” which provides that a guardian’s management “is governed by the provisions of this title.” One could read the broad authority as limited to the enumerated types of suits in Section 1151.104(a).
The Texas Family Code acknowledges that guardians possess authority to file suit for annulment on a ward’s behalf under Section 6.108(a). If the Estates Code only authorized guardians to bring the two types of suits in Section 1151.104(a), a guardian could never file for annulment as the Family Code contemplates. Yet the Legislature has not similarly acknowledged guardian authority to file for divorce.
The Personal Nature of Marriage and Divorce
Courts have long grappled with whether guardians have the authority to seek divorce on behalf of incapacitated wards.
Most courts declined to authorize guardians to initiate divorce actions absent clear legislation. This was based on the idea that marriage is “exclusively personal” and “may be dissolved only by the voluntary consent and the comprehending exercise of the will of an injured spouse.” The concern is that a spouse’s decision whether to divorce is highly personal and imbued with considerations that may not necessarily serve the spouse’s best interests or seem reasonable to other people.
The Texas Supreme Court had touched on this issue in Wahlenmaier v. Wahlenmaier, 762 S.W.2d 575 (Tex. 1988). In that case, it held that “a guardian ad litem or next friend can exercise the right of a mentally ill person to obtain a divorce.” However, that case involved a ward who had initiated the divorce before becoming incompetent, and the decision was a brief per curiam opinion containing no legal analysis.
More recently, courts have permitted guardians to initiate divorce actions even without evidence of the ward’s personal intent to divorce. The courts have observed that denying guardians the authority to initiate divorce completely deprives wards of equal access to the courts based solely on their disability and grants the competent spouse “absolute, final control over the marriage,” even when the incompetent spouse faces a great risk of exploitation and abuse.
Required Court Findings for Guardian-Initiated Divorce
The Texas Supreme Court declined to definitively resolve whether the Estates Code allows guardians to seek divorce on a ward’s behalf. However, the Court identified two requirements that must be satisfied if such authority exists.
First, the guardianship court must issue a specific order that expressly authorizes the guardian to pursue the divorce. The Court found this requirement in Sections 1151.001 and 1151.351 of the Texas Estates Code, which provide that an incapacitated person “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.” Because divorce is “purely personal to the parties” and a matter of “individual autonomy,” that right remains with the ward unless specifically granted to the guardian by court order.
Second, both the guardianship court and the divorce court must make express findings that the divorce is in the ward’s best interest and will promote and protect the ward’s well-being. The Court found this requirement in Section 1001.001 of the Texas 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.”
As for the current case, neither the guardianship court nor the divorce court made the required findings. The guardianship court’s order granted the guardian the power to “file, prosecute or defend any litigation, including divorce proceedings.” However, the order never expressly found that the divorce proceeding would be in Carlos’s best interest or promote his well-being.
Similarly, the divorce court granted the divorce based on the ground that Carlos and Leticia had lived apart without cohabitation for more than three years. But the divorce court never made an express finding that granting the divorce was in Carlos’s best interest and would promote and protect his well-being.
If Carlos were still living, the Supreme Court could have remanded the case to allow the guardian to obtain the required findings. However, because Carlos died during the appeal, the guardian could no longer demonstrate these requirements. The Court therefore vacated the divorce decree and dismissed the suit. Thus, the Court dismissed the case before reaching the merits as Carlos’s death during the appeal rendered the case moot.
The Takeaway
This case shows that Texas law allows a guardian to file for divorce on behalf of an incapacitated ward as long as two requirements are satisfied. First, the guardianship court must issue a specific order authorizing the guardian to pursue the divorce. Second, both the guardianship court and the divorce court must make express findings that pursuing and granting the divorce is in the ward’s best interest and will promote and protect the ward’s well-being. Without these findings, a divorce decree obtained by a guardian on behalf of a ward might not survive appellate review. The broader question of whether Texas law permits guardians to seek divorce at all on behalf of incapacitated wards is still somewhat in question given the language of the court, suggesting that the Legislature may need to clarify this authority.
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