Texas – Joint Ownership of Real Property by A Husband and Wife and Survivorship Agreements

Texas law makes assumptions about ownership of real property held jointly by married couples.

  1. By default, under the Texas Constitution, a married couple is assumed to own real property purchased during the marriage as community property without rights of survivorship. This makes them tenants in common, each owning one-half separately, rather than joint owners with rights of survivorship. (This is the opposite of financial accounts owned by a husband and wife which are presumed to be joint with right of survivorship unless specifically designated otherwise.
    • As tenants in common a deceased spouse’s interest in the home or other real estate requires probate or some other similar process to transfer title of the deceased spouse’s one-half interest to the surviving spouse. The deceased spouse’s one-half interest is considered to be part of the deceased spouse’s estate.
    • It does not interfere with the surviving spouse’s ability to continue living in the home, but the property cannot be sold or refinanced without clearing up the ownership interest held by the deceased spouse’s estate.
    • Married couples that have separate children from previous relationships have an additional complication. Under Texas heirship laws, in the absence of a Will or survivorship agreement redirecting the ownership of the deceased spouse’s one-half interest in the real property, their one-half will go to the deceased spouse’s children and not the surviving spouse. This results in a surviving spouse owning their house 50/50 with their stepchildren.

If a married couple wants to hold title as community property with right of survivorship, there must be language in their deed granting survivorship rights and that deed must be signed by both parties at the time of closing.  (Both the wife and the husband must sign the deed as proof they agreed to the joint with right of survivorship terms.)

Another option if property is already owned is a separate signed and recorded survivorship agreement.  These create a “Community Property Survivorship Agreement” between the couple allowing the property to automatically transfer to the surviving spouse without probate.  

Without this language in their recorded deed or in a recorded survivorship agreement a married couple is presumed to hold real property as community property without rights of survivorship and some form of probate will be required.

Solutions to Avoid Probate:

  1. The married owners can request “joint with right of survivorship” language be used in their deed if they are acquiring property and it would become part of the initially recorded deed, and they must sign the deed agreeing to the joint with right of survivorship terms.
  2. For property they already own they can add a separate survivorship agreement, agreeing between themselves to own the property as joint tenants with right of survivorship. It must be signed by both parties and recorded in the county deed records to be effective.
  3. AS of 2015 there is a new option for avoiding probate on real estate, a revocable pay on death Deed.
    • A revocable pay on death deed allows you to amend your deed and add pay-on-death beneficiaries just like you would on a bank account or life insurance.
    • If you combine that with the community property survivorship agreement property will pass from one spouse to the survivor and then to the beneficiaries all outside of probate.
  4. Property can be owned by a revocable or other type of trust and will transfer based on the trust terms.

Behlmann Law Firm, LP
21218 Kingsland Boulevard
Katy, Texas 77450
(281) 398-0088 FAX (281) 398-0728

PS: People ask why Texas title companies do not title property deeded to a married couple as “joint ownership with rights of survivorship”. The reason is the couple buying the property has to agree to allow their ½ community property interest to transfer to the surviving spouse. This requires additional language and requires the buyers (husband and wife) to sign the deed, which creates an additional complication at the closing.

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