For most married couples in Harris County, the home is their largest shared asset. Few spouses think about the deed’s wording until one of them dies, and by then that wording can decide whether the survivor keeps the house outright, shares it with stepchildren, or must open probate just to sell it. In Texas, community property rules determine who owns the home during the marriage, while a written survivorship agreement, whether framed as joint tenancy or community property with right of survivorship, determines whether the deceased spouse’s share passes automatically to the survivor or must go through a will or intestacy. At Murray | Lobb Attorneys, we have helped Texas families plan for and resolve these questions for more than 37 years.
Texas Is a Community Property State
Texas presumes that property acquired by either spouse during the marriage belongs to the community, meaning each spouse owns an undivided one-half interest. Property owned before the marriage, or received individually by gift or inheritance, is separate property. A house bought after the wedding with marital earnings is almost always community property, regardless of whose name appears on the deed.
That distinction matters at death because community property does not automatically pass to the surviving spouse. Each spouse owns half of the community estate and has the legal right to leave that half to anyone through a will. Absent a survivorship arrangement, the deceased spouse’s half of the home passes either under the will or under Texas intestacy rules.
What Happens Under Community Property Without a Survivorship Agreement
If the deceased spouse left a will, the will controls his or her half of the house, which may go to the surviving spouse, children, or a trust. The surviving spouse keeps his or her own half regardless.
If there is no will, Texas Estates Code Section 201.003 decides who inherits. When all of the deceased spouse’s children are also children of the surviving spouse, or there are no children, the surviving spouse takes the entire community estate. When the deceased spouse had children from another relationship, the deceased spouse’s half of the community property passes to those children instead. In blended families, this frequently leaves a surviving spouse co-owning the home with stepchildren.
Either way, transferring the deceased spouse’s half usually requires some form of court proceeding, such as probate of a will, a muniment of title, or an heirship determination, before a buyer or lender will accept the title.
Community Property With Right of Survivorship
Texas allows spouses to change this default outcome by signing a community property survivorship agreement under Chapter 112 of the Texas Estates Code. The agreement must be in writing and signed by both spouses. Language such as “with right of survivorship” is generally sufficient to create the survivorship right.
When one spouse dies, the deceased spouse’s half passes directly to the surviving spouse outside of probate and outside of the will. The surviving spouse can ask the court for an order adjudicating the agreement, which gives title companies the documentation they typically require, but a full probate administration is not needed to transfer the home.
How Joint Tenancy Works in Texas
Joint tenancy with right of survivorship is a form of co-ownership in which each owner’s interest passes automatically to the surviving owners at death. Many people assume the phrase on a deed is enough. In Texas, however, Estates Code Section 101.002 provides that a joint owner’s interest does not pass to the surviving owner unless there is a written agreement that it will. Without that agreement, the deceased owner’s share passes as though the owners held the property as tenants in common.
Texas does recognize written survivorship agreements between joint owners under Chapter 111 of the Estates Code. For married couples, joint tenancy most often applies to separate property, such as a home one spouse owned before the marriage and later added the other spouse to, or property the spouses have formally partitioned out of the community. When spouses take community property as “joint tenants with right of survivorship,” a court may examine whether the language satisfies Chapter 112, so the label on the deed does not always settle the question.
The Tax Difference Can Be Significant
The way the home is held can affect the surviving spouse’s capital gains taxes if the house is later sold. Inherited property generally receives a stepped-up basis equal to its fair market value at death, and for community property, both halves of the home receive that step-up, as explained in IRS Publication 551.
For property held in joint tenancy between spouses, generally only the deceased spouse’s half receives a stepped-up basis. The surviving spouse’s half keeps its original basis. In the Houston area, where many homes have appreciated substantially, that difference can mean tens of thousands of dollars in additional taxable gain on a sale.
The Homestead Right Protects the Surviving Spouse
Regardless of how title passes, the Texas Constitution gives a surviving spouse the right to occupy the family homestead for as long as he or she chooses to live there. This right exists even if the deceased spouse’s half of the home went to children from a prior marriage. Those heirs own their share but generally cannot force the surviving spouse out or compel a sale, which can create long-term friction with stepchildren who cannot access the value of their inheritance.
Choosing the Right Approach
For many couples, a community property survivorship agreement offers both an automatic transfer and a full basis step-up. It is not right for everyone. Because it overrides the will for that asset, spouses who want to protect children from a prior marriage may prefer a will or trust giving the surviving spouse a life estate with the remainder to the children.
Talk With a Harris County Estate Planning Lawyer
The wording on your deed and the documents behind it decide what happens to your home. If you are unsure how your house is titled, or your spouse has recently passed and you need to transfer the property, Murray | Lobb Attorneys can help. We serve families throughout Harris, Galveston, Fort Bend, Montgomery, and Chambers Counties. Call 281-488-0630 or contact us to schedule a consultation with a Harris County estate planning attorney.