A lot of people mistakenly assume that all jointly-held property automatically passes to a surviving spouse when one spouse dies. That is not necessarily the case.
Jointly-held property can be held as tenants in common or as joint tenants with rights of survivorship. Most couples who own property jointly in Texas own the property as tenants in common.
Property that is held with rights of survivorship will pass to the survivor upon the death of the joint tenant; however, property held as tenants in common will not.
For example, suppose you and your spouse own a house together jointly as tenants in common. When one spouse dies, the deceased spouse’s interest in the property will not automatically pass to the surviving spouse. Rather, property records will reflect the owner of the property as the surviving spouse and the estate of the deceased spouse.
This often comes to light when the surviving spouse is trying to sell the jointly owned home. Before the surviving spouse will be able to sell the home, there will likely need to be some type of probate proceeding to show that the deceased spouse’s interest in the property has passed to the surviving spouse.
If you want property to pass to your surviving spouse by operation of law, there are several steps you can take:
- Execute and record a transfer on death deed for real property you want to pass to your surviving spouse.
- Title jointly owned bank accounts as joint tenants with rights of survivorship.
- Name your spouse as the POD or TOD beneficiary bank accounts that are not jointly held.
- Name your spouse as the beneficiary of life insurance policies and retirement plans.
Doing these things would pass your property to your surviving spouse by operation of law rather than through probate.
Always talk to your estate planning attorney to confirm that making these changes will not disrupt your existing estate plan.