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San Antonio Express-News
Copyright 2009, Paul Premack
October 20, 1989

*Community Property Survivorship Agreement*

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 will is necessary to cover issues which the survivorship agreement cannot address.

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. My office prepares them at minimal cost (visit the Virtual Law Office.)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.

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.

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.

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Disclaimer: This column answers a specific legal question asked by an individual in Texas. The answer may or may not match your individual situation. Be careful not to treat this column as specific legal advice, as it may not meet your individual needs. It may give you a solid basis for discussion with your own attorney.  You should consult with your personal attorney before you take any action on this or any legal issue. Also, please be aware that laws change, so  this column is valid only as of the date it was published. This communication does not create an attorney-client relationship between the author and the reader.