The picture of a property on a cloudy day.

One of the most common misconceptions married people have about joint ownership of property is that it passes automatically to the survivor on death of the one of the owners. The presumption in Texas is just the opposite.

The question is usually presented to me like this: “it was in both our names, so I own it now, right?”  Sorry, but it doesn’t work that way.

Here is a typical situation. Husband and wife own a house, a car and a bank account in both names. Texas law requires a community property survivorship agreement to be in writing and to use terms specifically referencing the right of survivorship, such as: “with right of survivorship”, “will become property of the survivor”, “will vest in and belong to the surviving spouse” or “shall pass to the surviving spouse”.

Most deeds say John Doe and Mary Doe, Husband and Wife and say nothing about survivorship. There is no automatic right of survivorship and it becomes necessary to probate the deceased owner’s will or to take other action to clear title to the property.

A Texas automobile title has a place at the bottom of the document to sign to create the right of survivorship, but no one ever tells you to sign it and most people don’t.

Texas law (Estates Code 112.052(d)) provides that a survivorship agreement may NOT be inferred from the mere fact that an account is a joint account or that an account is designated as JT TEN, Joint Tenancy, or joint, or with other similar language. In that case you will have to refer to the underlying account agreement for some specific language about a right of survivorship.

Estate planning is about much more than just writing a will. It involves a review of how property is titled and the legal consequences thereof.

A failure to get proper legal advice as to how your property is titled could result in your wishes being defeated and your family being left with a mess to straighten out.

Hammerle Finley Law Firm. Give us a call. We can help.

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The information contained in this article is general information only and does not constitute legal advice.