San Antonio Express-News
Copyright 2009, Paul Premack
October 13, 2009

* What's a Good Way to Add Spouse to Deed?
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Affidavit of Heirship can be Signed by whom? *

Dear Mr. Premack: My wife and I live in a house that I owned before we were married and it is in my name only. What is the best and hopefully least expensive way of getting her name on the deed? – RAS

In your situation, Texas law gives your home a dual nature. It is your separate property and at the same time it is your marital homestead. As your separate property, it is clear that you are its sole owner and that you would own the proceeds if the house was sold. But since it also your marital homestead, there are certain things you cannot do with the house unless your wife agrees.

For instance, the house cannot be sold without her signature. You cannot borrow money secured by a lien against the house without her signature. You can give ownership away in your Will to anyone you like, but your wife has the legal right to occupy the house after you die even if she is not the owner of the house. So making her a co-owner is not much of a change for you, but it can be a big change for her.

If you make her a co-owner of the house, you must be careful about exactly what you are giving to her. Typically, a gift of separate property becomes the recipient’s separate property. So one option to get her name on the deed is to have an attorney draw up a gift deed in which you grant her half-ownership of the house as her separate property.

But there is a more advantageous way to co-own the home, by taking advantage of two other specific Texas laws. The first law allows you to give a one-half interest in the house to your wife as community property. To use it, you must follow specific rules set out in the Texas Family Code, including a written disclosure of the effect of becoming co-owners.

The second law allows the two of you to agree that the house (now jointly owned community property) will become the property of the survivor between the two of you should one of you die. To use it, you must follow specific rules set out in the Texas Probate Code, including the requirement that you both sign the agreement and that it be recorded with the county clerk.

Hence, the least expensive way to make her a co-owner is a simple gift deed drawn up by your lawyer. But the best way to make her a co-owner is a more complex agreement involving conversion of the separate property into community property then overlaying survivorship rights to avoid probate when either of you dies. The later method is more expensive in the short run, but will save a lot of money in the long run by helping to avoid probate. Seek help from an experienced attorney when you have made your choice.

Dear Mr. Premack: Can the affiant on an Affidavit of Heirship be an interested party? Can that person also receive ownership of the deceased person's property? - AG

The statute which authorizes an Affidavit of Heirship (formally called an “Affidavit of Facts Concerning Identity of Heirs”) calls for a statement from an individual who has personal knowledge of the family and the marital history of the deceased person. The statute does not bar an interested person from signing the affidavit. However, in practice it is best that the affiant have no interest in receiving assets from the estate.

It is notable that the statute which authorizes the Affidavit gives it minimal credibility. The law says that the Affidavit must be on public record for five years before the information it contains is presumed to be true. Even then, the information can be challenged or added to if someone alleges that an error or omission was made. If a legal heir is omitted, that heir still has the legal right to claim whatever inheritance that is legally due.

Still, these Affidavits can have a positive practical effect when a title company is willing to accept the information about the heirs. Title company standards indicate that the affiant should, if at all possible, be a disinterested party to enhance the integrity of the information.