Does my spouse automatically get my share of the house when I die?

The answer is it depends, but usually not if you have not set up your estate plan. Texas is a community property state, which means that any property created, purchased, or earned during marriage is presumed to be part of the community estate. In the community estate, each spouse owns one-half of the community interest without restrictions. This creates what is known as a joint tenancy. 

There are two kinds of joint tenancy in Texas: 

1) joint tenants – A joint tenancy is simply co-ownership of property. In a joint tenancy, when one owner dies, his or her share of the property passes to the decedent’s heirs (which may not be the surviving spouse) or to the persons named in the decedent’s will. 

2) joint tenants with right of survivorship – A joint tenancy with right of survivorship is co-ownership of property with an agreement between the owners. In this joint ownership, when an owner dies, his or her share of the property goes to the other co-owner(s) that survive the deceased owner. A joint tenancy with right of survivorship must be created by a written agreement between owners. The traditional deed that you get when you buy a house together, typically, does not create a joint tenancy with right of survivorship.

There are ways that spouses can ensure that the survivor gets the deceased spouse’s share of the house when the die:

1) sign a right of survivorship agreement and record it in the real property records

2) sign wills that gifts the property to the surviving spouse and probate it after the deceased spouse’s death

3) sign transfer on a death deed (TODD) that names the spouses as beneficiaries when one of them dies and recording it in the real property records

If you are interested in ensuring that your spouse will get your half of the community home when you die, make sure to speak to an experienced estate planning attorney to learn about your options and put your plan together.

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