Marital property ownership rights are important for estate planning purposes. In most community property states, communal owners each own half of their property and as such, they may freely dispose of their rights as they wish while they are alive or at death. At one spouse’s death, a community property owner may not have an automatic right of survivorship to the remaining property. However, in Texas, the Texas Legislature recognized the need for flexibility for planning purposes between spouses.
The Texas Legislature amended the Texas Constitution and the Texas Probate Code. The Texas Probate Code allows spouses to enter into agreements whereby a surviving spouse has a legal right to automatically own her deceased spouse’s community property upon his death. Spouses can enter into written agreements between them giving one spouse a survivorship interest to community property. To conform with the Texas Probate Code, a written agreement must bear the signatures of both parties and must identify the subject community property. The language within the agreement must specifically incorporate specific survivorship language giving a surviving owner a right to unlimited ownership of that community property at one owner’s death.
Stephen A. Mendel, Estate Planning Attorney
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