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Failed Will Can Qualify As A Community Property Survivorship Agreement In Texas

A document labeled as a will can be adjudicated as a community property survivorship agreement in the appropriate circumstances under Texas law.  In Estate of Lovell, Jimmy and Beatrice, husband and wife, signed a joint and mutual will using an internet form.  As is common with internet estate planning, things did not go as Jimmy and Beatrice planned.

The internet will contained the following directives:

In paragraph IV, the couple stated their mutual agreement to execute a joint and mutual will, “leaving to the survivor all property, real and personal, of the party first to die, and on the death of the survivor,” leave all of his or her property “to our children equally, share and share alike.” In paragraph V, they stated their “desire” that the “survivor of us shall have absolutely and in fee simple all the property, real, personal, or mixed,   which either or both of us may own or have any interest in at the death of the one of us first to die.”

The couple did not have the will witnessed, as required under Texas law for a valid will.

Beatrice died, and Jimmy sought to have the will admitted to probate.

The wife’s son, Mario, contested the will because it was not witnessed.  The challenge was successful.

Jimmy then offered the failed will as a community property survivorship agreement under Texas law.

The Texas probate court determined that the failed will met the requirements for a valid community property survivorship agreement.  Jimmy was declared the owner of the wife’s property.

Mario appealed the ruling of the Texas probate court.  The Texas appellate court affirmed the probate court’s ruling.

What Are The Requirements For A Valid Will In Texas?

Pursuant to Texas Estates Code § 251.051, a will must be

(1)  in writing;

(2)  signed by:

(A)  the testator in person; or

(B)  another person on behalf of the testator:

(i)  in the testator’s presence; and

(ii)  under the testator’s direction; and

(3)  attested by two or more credible witnesses who are at least 14 years of age and who subscribe their names to the will in their own handwriting in the testator’s presence.

Here, because the will was not witnessed, the will was not valid, and was the subject of a successful will challenge under Texas law.

What Is A Community Property Survivorship Agreement?

A “community property survivorship agreement” is an agreement between spouses that creates a right of survivorship in community property.  Texas Estates Code § 112.001.

Pursuant to Texas Estates Code § 112.051:

At any time, spouses may agree between themselves that all or part of their community property, then existing or to be acquired, becomes the property of the surviving spouse on the death of a spouse.

What Are The Requirements For A Community Property Survivorship Agreement?

A community property survivorship agreement must be in writing and signed by both spouses.  Texas Estates Code § 112.052.   The agreement is sufficient to create a right of survivorship in community property if it includes the phrases “with right of survivorship,” “will become the property of the survivor,” “will vest in and belong to the surviving spouse,” or “shall pass to the surviving spouse.”

The Texas appellate court stated:

Even if those phrases are not used, however, a community property survivorship agreement that otherwise meets the requirements of chapter 112 is effective.  A surviving spouse may apply to the court for an order stating that a community property survivorship agreement satisfies the requirement of chapter 112 and is effective to create a right of survivorship in community property. 

Here, the failed will was:

  • In writing
  • Signed by both Jimmy and Beatrice
  • Expressed the intent that one the death of one of them, the other would have “absolutely and in fee simple” all property which either or both owned or had any interest in “at the death of the one of us to first die.”

The Texas appellate court determined that the document met the statutory requirements of a community property survivorship agreement.

Substance Trumps Form In Determining Validity of A Community Property Survivorship Agreement

The wife’s son’s argument was that the failed will was intended to be a will, not a community property survivorship agreement, and therefore it lacked the meeting of the minds necessary for the creation of a community property survivorship agreement.

The Texas appellate court ruled that the terms of the failed will were clear that the husband and wife wanted  each to own all of the other’s property upon death.  To refuse to honor the failed will as a community property survivorship agreement would be to elevate form over substance.  The labeling of the failed will as a will did not defeat the substance of the document.

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Find Your Texas Probate Star

San Antonio

Gilbert Vara, Jr.

Austin

Kyle Robbins

Houston

Grace P. Shoemakers

Dallas

Steven S. Boss

Williamson County

Lorenza Cigarroa

Grayson County

Jacob Pelley