Dear Mr. Premack: My wife and I created a Community Property Survivorship Agreement (CPSA) in 2001. My wife died recently and I have since changed the car title to my name only. Should I also change the deed to our home, which we own, to my name only? Would this simplify the sale of our home should I decide to sell? If I don’t choose to sell, would it simplify the property transfer process to my son when I die? If you recommend changing the deed, do I go to a title company or to my attorney? – GW

Your Community Property Survivorship Agreement passed title to all community property to you as surviving spouse. Title passes because the CPSA exists. However, the CPSA does have limitations. For instance, if both spouses die together in a common accident there is no survivor, so the heirs must instead rely on probate of the Wills. Further, a CPSA only covers community property. Any separate property assets your wife owned (like land she may have inherited) are not covered. Separate property may require that her Will be probated despite the existence of the CPSA.

For community property, the Texas law specifically states that a CPSA which fulfills the requirements of law (e.g., has the right wording, is properly executed, and is filed with the county clerk) becomes "effective without an adjudication". Transfers at death under a CPSA are "effective by reason of the agreement" and are not testamentary transfers. They are not subject to probate of the Will.

Even with that strong statutory language, I have run into circumstances where, unpredictably, some examiner at a title company does not understand the CPSA law. They stubbornly refuse to accept the CPSA as a title transfer even though it is authorized in both the Texas Constitution and the Texas Probate Code as an alternative to a courtroom probate.

To avoid that problem and to provide clarity and predictability, it is a good idea to change the public records to show that you are now the sole owner of your home. After one of the spouses dies the survivor should go back to the attorney who helped prepare the CPSA.

Ask for an affidavit that informs the public that your spouse has died. (There is no automatic official open public record of your spouse’s death. The death certificate is an official record, but the law states the government can only give copies of the death certificate to certain family members. The obituary is public but is not official). This affidavit will become public when it is filed in the county clerk’s "official public records".

The affidavit informs the public that under the terms of the CPSA you now own 100% of the home. It provides information that would not be available otherwise, creating certainty about the ownership of the house. It will make the chain of title clear for your heirs upon your eventual death if you decide to keep the property, and will simplify things if you decide to sell.

If you decide to sell and the title company examiner stubbornly refuses to accept the law, you still have options. You could file an affidavit of heirship with the county invoking your inheritance rights under the probate code. Or you could use a provision in the CPSA statute allowing you to "apply to the court for an order stating that the agreement satisfies the requirements of this code and is effective to create a right of survivorship in community property". Once such an order is issued by the court, the CPSA must be accepted by all parties.