Updated: Oct 1, 2021
Original Publication: San Antonio Express News, October 20, 1989
Starting August 1989, Texas spouses became able to use a “Community Property Survivorship Agreement” to automatically pass their community property to the survivor when one spouse dies. A properly written, signed, and filed survivorship agreement simplifies the complex tasks faced by a widow or widower. Still, a last will and testament is necessary to cover issues which the survivorship agreement cannot address.
Historically our community property system, which we inherited from the Spanish, thwarted attempts by married couples to create “survivorship” arrangements for the couple’s community property. When one of the spouses died, title could only pass to the survivor through the last will and testament. Thanks to a constitutional amendment, the community property survivorship agreement changes that pattern. The opportunity to automatically pass your community property to your surviving spouse, without the need for complex probate procedures, is an idea whose time has come.
When a spouse dies, “probate” of a community survivorship agreement is not necessary. The agreement passes title of your community property to the surviving spouse without any further action.
If a dispute arises, the probate Court can guarantee validity of the agreement. The Judge will need to see the original agreement, so keep it in a safe place and let someone else know where it is. Once an order is signed, anyone who should deliver property to the survivor may do so without hesitation.
Both spouses must sign the agreement, which should be prepared by an attorney to ensure that it is valid and that it will be enforceable. My office (210-826-1122) prepares them at minimal cost. You must then file the agreement with your county clerk. It is then ready to pass assets to the survivor without the need for extensive paperwork or court intervention.
A will is still necessary for depth of planning. A will is the best way to 1) pass title to your separate property; 2) name a “backup” heir if there is no surviving spouse; or, 3) pass assets to someone other than your surviving spouse.
The community property survivorship agreement is a planning tool you should strongly consider. When properly written it streamlines procedures, is straight-forward and will save you time and money. If you want to simplify your own estate, you must obtain, sign, and file a community property survivorship agreement.
By Paul Premack, Attorney