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Local Experts: Spouses and Property

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Virginia Hammerle 15by Virginia M. Hammerle

Some couples find it difficult to agree on anything.  Others can agree on almost everything.

For those with a penchant for agreeing, consider entering into an Agreement For Right of Survivorship in Community Property.

Here is how it works.   John and Jane are married and live in Texas.  They work hard and during their marriage purchase a lot of property – a house, some bank accounts, furniture, a car or two.    All of that is considered community property.

They decide that when one of them dies, the other person should get to keep some, if not all, of the community property.  There are several ways to make this happen – but they decide the easiest way is to simply sign an Agreement.  Specifically, a Community Property Survivorship Agreement.

What’s required for a valid Agreement?  It must be in writing and describe the community property that it covers.  It must be signed by both John and Jane.

What if John later changes his mind?  He can revoke it by following the terms in the Agreement or, if the Agreement doesn’t address it, then by signing a statement saying he is revoking it, and sending it to Jane.

If it isn’t revoked, then when John dies the Agreement is immediately effective.  That means Jane gets a right of survivorship in all of the described community property – it’s hers without any additional legal action.  It doesn’t even pass through John’s probate estate.

Of course, saying that an Agreement is effective is easy.  Getting other people (and government agencies) to accept it is a whole ‘nother matter.   The statute provides an answer.   After John dies, Jane can ask Court for an order stating that the Agreement is effective and that the property passed to her as the survivor.  The Court’s Order can then be used to prove that Jane owns all of the community property.

Like many types of agreements, a Community Property Survivorship Agreement should not be attempted by a couple until after they have consulted with an attorney [preferably Hammerle Finley Law Firm] and their CPA.  To be perfectly blunt, it should only be drafted by a knowledgeable attorney.  The statute is found in the Texas Estates Code, not the Texas Family Code, and that alone should give pause to anyone contemplating a do-it-yourself type of document.

Hammerle Finley Law Firm – Call Us.  We Can Help.

Virginia Hammerle is a Board Certified Civil Trial Attorney by the Texas Board of Legal Specialization and an Accredited Estate Planner by the National Association of Estate Planners & Councils. She can be contacted at legaltalktexas@hammerle.com.  The information contained in this article is general information only and does not constitute legal advice. ©2015

 

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