Texas Marital Property and Survivorship Agreements

Texas law makes assumptions about how married couples and joint owners will hold title to real estate and creates default classification based on those assumptions. If the owners want to change these classifications, they may do so by written agreement. These agreements are signed by all owners to express each owner’s intent to hold title in a specific way. Common agreements include:

1. Community Property Survivorship Agreement – An agreement between spouses that some or all of their Texas community property—whether then existing or later acquired—becomes the property of the surviving spouse on the death of a spouse. Community Property Survivorship Agreements are authorized by Section 112.051 of the Texas Estates Code and must meet specific legal requirements.
2. Survivorship Agreement (Non-Spousal) – A joint agreement of the owners in writing that the interest of a joint owner who dies survives to the surviving joint owner or owners. Survivorship Agreements are authorized by Section 111.001 of the Texas Estates Code. Non-Spousal Survivorship Agreements do not apply in the community property context.
3. Partition and Exchange Agreement – An agreement between spouses to partition or exchange between themselves all or part of their community property—whether then existing or later acquired—as the spouses may desire. Any property transferred to a spouse by a Partition and Exchange Agreement becomes that spouse’s separate property. Partition and Exchange Agreements are authorized by Section 4.102 of the Texas Family Code.
4. Marital Property Agreement – A Marital Property Agreement doesn’t change the character of the property. Instead, it allows a spouse to provide written acknowledgment that he or she agrees that a particular asset is separate

Agreements like these can assure third parties—like title companies—that the spouses agree about the characterization of the property and that each owner intends to hold title in a specific way.

Reflecting Separate Ownership of Marital Property

Most real estate acquired by a married couple during the marriage is treated as community property. Spouses can use a Partition and Exchange Agreement convert community property to separate property of one spouse.

Creating Survivorship Rights in Community Property

By default, community property does not include survivorship rights. On the death of one spouse, his or her interest in the property passes to his or her estate instead of directly to the surviving spouse.

Married couples can change this result using a Community Property Survivorship Agreement. The Community Property Survivorship Agreement must be in writing and signed by both spouses. It must also include special language to create the survivorship rights. Although the agreement may be created at any time, it is good practice to create it when the spouses acquire the real estate and to record it in the land records with the deed.

Creating Survivorship Rights in Other Forms of Property

By default, property owned by multiple owners does not include a right of survivorship. Co-owners may create a right of survivorship by agreeing to hold title as joint tenants with right of survivorship. Specifically, Section 111.001 of the Texas Estates Code provides:

RIGHT OF SURVIVORSHIP AGREEMENTS AUTHORIZED.

(a) Notwithstanding Section 101.002, two or more persons who hold an interest in property jointly may agree in writing that the interest of a joint owner who dies survives to the surviving joint owner or owners.

(b) An agreement described by Subsection (a) may not be inferred from the mere fact that property is held in joint ownership.

Under this provision, joint owners can hold title with rights of survivorship, as long as they “jointly … agree in writing to do so.”

Although this language seems straightforward, it is not always clear how to create the right of survivorship. The problem arises from the fact that Texas deeds are usually signed only by the transferring owners (grantors), not by the people receiving the property (grantees). Because the grantees do not sign the deed, it is unclear that they have “agreed in writing” to hold title with right of survivorship. Although case law hints that acceptance of a Texas deed that contains a right of survivorship may be enough to create the “agreement in writing” between the co-owners, that case law pre-dates the current version of the Texas statute. This ambiguity can be avoided by having a separate Survivorship Agreement signed by the grantees.

Common Scenarios for Property Agreements

These agreements can be especially helpful in the scenarios described below.

Scenario 1: The deed is to a married couple. No one else is listed on the deed.

By default, the married couple will own the property as community property without rights of survivorship. If the couple wants to hold title as community property with right of survivorship, the couple must sign—in addition to the deed—a Community Property Survivorship Agreement. The Community Property Survivorship Agreement should be recorded with the deed in the land records of the county where the property is located.

Scenario 2: The deed is to multiple owners who are unmarried.

Because the owners are unmarried, community property is not an issue. The owners may own the property either as tenants in common or as joint tenants with right of survivorship.

If the owners will hold title as tenants in common, the deed should use the phrase “as tenants in common” to designate the form of co-ownership as a tenancy in common. This phrase is enough to create a tenancy in common. On the death of one owner, the interest of the deceased owner will not pass to the surviving owners. Instead, under Section 101.002 of the Texas Estates Code, the interest of the deceased owner will pass through the deceased owner’s will or—if the deceased owner did not have a will—by intestacy to the deceased owner’s heirs. The surviving owner will continue to own his or her proportionate interest in the property.

If the owners will hold title as joint tenants with right of survivorship, the deed should specify that the property is being held as joint tenants with right of survivorship. The owners should also sign a Non-Spousal Survivorship Agreement, which should be recorded with the deed in the land records of the county where the property is located.

Scenario 3: The deed is to persons not married to each other. At least one owner is married, but all married owners will hold the property as separate property.

This scenario is similar to Scenario 2. Because each owner will hold title as separate property, the community property rules do not apply. The owners may hold title either as tenants in common or as joint tenants with right of survivorship.

If the new owners will hold title as tenants in common, the phrase “as tenants in common” or something similar should be added to the deed. Nothing more is required. If the new owners will hold title as joint tenants with right of survivorship, the joint owners should sign a Non-Spousal Survivorship Agreement and record it with the deed.

To avoid title issues, it is often recommended that the married party obtain written evidence from his or her spouse that the property is the owner’s separate property. A Marital Property Agreement that identifies the property, states the basis for characterizing the property as separate property, and is signed by both spouses and recorded with the deed. Although not strictly required, the Marital Property Agreement can prevent future title issues by assuring third parties—like title companies—that both spouses agree that the property is not community property.

Scenario 4: The deed is to persons not married to each other. At least one owner is married and will hold his or her interest as community property, but his or her spouse is not a party to the transaction and will not be included on the deed.

This creates a scenario where a person will own property as community property, but without that person’s spouse also being included on the deed. In this situation, creating a joint tenancy with right of survivorship is difficult (perhaps impossible). There is simply no well-accepted way to create a survivorship arrangement that takes into account both the community property interest held by the unnamed spouse (who is not a party to the transaction) and all of the current owners of the property.

Scenario 5: The deed is to a married couple plus at least one other person.

This scenario is similar to Scenario 4, but with an important difference: Both spouses are parties to the deed. In this scenario, both tenancy in common and joint tenancy with right of survivorship are available, as long as the spouses first partition their community property interest and convert it to separate property.

To make this work, the spouses must execute a Partition and Exchange Agreement that vests each spouse with an interest in the property as a separate property. The transaction would be treated as though it were between unrelated parties.

The owners could take title as tenants in common by using the phrase “as tenants in common” or something similar on the deed. Each party—including each spouse—would own an equal interest in the property.

Alternatively, the owners could take title as joint tenants with right of survivorship by including appropriate language in the deed and signing a Survivorship Agreement and recording it with the deed in the land records of the county where the property is located.