A Community Property Survivorship Agreement, often shortened to CPSA, gives married couples in Texas a clear way to pass community property to the surviving spouse without court probate. The agreement can cover real estate, financial accounts, and other community assets so title moves by contract on death. Texas Estates Code Chapter 112 authorizes these agreements and explains the formalities that make them valid. When spouses sign a CPSA that follows the statute, the survivor’s ownership of the covered property vests automatically upon the first spouse’s death, which keeps those assets out of the estate’s probate process. This guide explains how community property with right of survivorship Texas works, what the law requires, where frictions arise with title companies and banks, and how a CPSA compares to other probate avoidance tools.
What a CPSA does
At its core, a CPSA is a written contract between spouses stating that some or all of their community property will belong to the survivor when one spouse dies. Texas law expressly allows spouses to make this agreement and treat community property like survivorship property. The statute gives couples a reliable way to convert ordinary community property into community property with a right of survivorship that passes outside probate upon death of a spouse. See Texas Estates Code Chapter 112 for the authorizing language and requirements for validity and enforcement (law.justia.com).
Without survivorship rights, a deceased spouse’s one half interest in community property does not automatically move to the other spouse. It becomes part of the deceased spouse’s estate and passes by will or by intestacy. That default rule surprises many families, particularly in blended family settings where children from a prior relationship may inherit part of the home or other assets. A CPSA changes that outcome for the assets it covers by giving the surviving spouse full ownership immediately at death. For an overview of the default rules and why many couples choose survivorship planning, see Texas community property laws and estate planning.
Texas law also recognizes survivorship rights created in title documents themselves, such as deeds or account agreements that include survivorship language. The CPSA is a flexible alternative because it can cover multiple assets in a single instrument and can be tailored to a couple’s planning goals. The law explains that certain phrases make the intent obvious, though the agreement can still be valid if it clearly shows an intent to create survivorship rights even without those exact phrases. See the statutory discussion below and Chapter 112 for the language guidance and effectiveness rules (casetext.com).
How a CPSA avoids probate
Probate is the court supervised process for transferring a deceased person’s assets to heirs or beneficiaries. Assets that pass by beneficiary designation or survivorship rights are not subject to probate because the title transfer occurs by contract. A CPSA places covered community assets in that non probate category, which means the surviving spouse can often complete transfers with documentation rather than a court order. That reduces delay and cost for the surviving spouse and helps with financial stability after a loss. For a plain language discussion of probate in Texas and survivorship concepts, see probate and rights of survivorship in Texas.
Property you can include
Spouses can apply a CPSA to any community property interest they share. That often includes the homestead, additional real estate, bank accounts, brokerage accounts, business interests classified as community, and personal property. Some assets already pass outside probate by account agreement, such as payable on death or transfer on death accounts. Even then, couples may prefer to coordinate beneficiary designations with a CPSA so the entire plan supports a unified result.
For real estate, some couples include survivorship language directly in a deed. Others use a separate CPSA that names specific properties. Either method can work. Coordination with the county records office is helpful for future title work, which is why many couples file the CPSA or a memorandum in the real property records of the county where the property sits.
When the transfer occurs
With community property with right of survivorship Texas, title transfers to the surviving spouse at the moment of death of the first spouse. That timing matters because it means the asset never becomes part of the deceased spouse’s probate estate. The survivor can present the CPSA and a death certificate to the relevant institution or to a title company if a sale or refinance is pending. The statute confirms that an agreement meeting Chapter 112’s requirements is effective without a court adjudication. In other words, the legal right exists by force of the agreement, not by a judge’s order. A court adjudication remains available if a bank, title company, or third party refuses to honor the agreement in practice. See the effectiveness and adjudication provisions in Chapter 112 (law.justia.com).
Legal requirements
Texas Estates Code Chapter 112 sets out the basic formalities for a valid survivorship agreement in community property. The law is written to give couples a practical checklist. When properly followed, the agreement creates the survivorship right without a court order. These are the key points.
Written and signed
A CPSA must be in writing and signed by both spouses. The statute expressly says that an agreement between spouses to create a survivorship right in community property must be evidenced by a written instrument that both spouses sign. This is a central requirement, so do not rely on oral statements or unsigned drafts. See the signature and writing requirements in Chapter 112 for authority (casetext.com).
Most lawyers also recommend notarization. Chapter 112 does not require notarization for all agreements, but notarization strengthens proof of execution and makes the document easier to record in county property records. If the agreement will be recorded to give notice to third parties, notarization helps the county clerk accept the instrument as part of the real property chain of title.
Suggested phrases
The statute explains that certain phrases show the intent to create a right of survivorship, such as wording that includes with right of survivorship, will become the property of the survivor, or similar statements of survivorship. This type of language helps title examiners and banks connect the agreement with the legal effect the couple intended. The statute also says the agreement can still be effective without those exact phrases if the rest of the language clearly expresses the same intent. See Chapter 112 for the sufficiency of language rule and examples of acceptable phrasing (law.justia.com).
Clarity matters. Use plain words. Identify the property covered with enough detail to avoid guesswork. State whether the agreement covers all community property present and future or only specific assets. Consider including a schedule of assets and a process for updating the schedule when property is acquired or sold.
Effective without court
A CPSA that satisfies Chapter 112 is effective and enforceable without court adjudication. The surviving spouse may still seek a court adjudication to confirm survivorship rights if a financial institution or title company refuses to accept the agreement. That court step is a backstop, not a prerequisite. This point appears in the statute itself and is supported by practical guidance from Texas probate practitioners. See the adjudication and effectiveness provisions in Chapter 112 and the practice commentary linked above (law.justia.com).
Real world issues
Although the law makes a valid CPSA effective without a court order, some institutions hesitate to rely on an agreement alone. Title companies, for example, often prefer a recorded instrument or a court order when issuing a title policy on a sale or refinance. Financial institutions sometimes require their own forms as a condition for processing account transfers. None of that changes the legal validity of a CPSA, but it can change the paperwork your spouse must present after a death. For a discussion of this practical friction, see probate and rights of survivorship in Texas and practitioner commentary from other Texas attorneys who track how title companies handle these agreements in everyday transactions (legaltalktexas.hammerle.com).
Recording can reduce post death friction for real estate. Couples can record the CPSA itself or a short memorandum in the county property records where the real estate sits. Some couples place survivorship language directly in the deed when acquiring or retitling property. These steps help a title examiner confirm the survivorship chain without requesting a court order. For bank and brokerage accounts, beneficiary designations and account level survivorship agreements can complement a CPSA for efficient administration.
In short, a CPSA creates the right. Thoughtful paperwork and recording help third parties recognize that right without extra hurdles in a time of grief.
CPSA versus other tools
A CPSA is one of several ways to pass property outside probate. The best mix depends on the asset type and family goals.
Real estate. A deed can include survivorship language or use a Lady Bird deed as an alternative. A Lady Bird deed is a type of enhanced life estate deed that lets an owner retain control during life while naming beneficiaries who take title upon death. It offers Medicaid planning and creditor related features that differ from a CPSA. For a comparison, see Lady Bird deed (avoid probate).
Financial accounts. Transfer on death and payable on death designations move accounts to named beneficiaries outside probate. Many couples still sign a CPSA to cover accounts that lack beneficiary features or to present a unified plan that prioritizes the survivor.
Revocable living trusts. A trust can hold community assets and pass them to the survivor without probate while also providing disability planning and management during life. Trusts add drafting complexity and funding steps. A CPSA can be used alongside a trust when the couple wants survivorship treatment for assets the trust does not hold or for simplicity with certain jointly titled assets.
Joint tenancy. Texas recognizes survivorship by agreement between spouses under Chapter 112 for community property. Joint tenancy with right of survivorship is a different concept used in some states for joint ownership between any persons. In Texas, survivorship rights for spouses in community property arise under the CPSA statute. Titling assets in the correct manner matters because a joint tenancy label without an actual survivorship agreement can create confusion under Texas law.
When a CPSA may not fit
Blended families. A CPSA gives the survivor full title to covered assets at the first spouse’s death. That can conflict with a plan to pass some portion of the first spouse’s one half community interest to children from a prior relationship. Couples in second marriages often choose asset specific survivorship rather than blanket survivorship so the survivor receives liquidity and a home, while certain assets pass to children according to a coordinated will or trust. See a general discussion of choices that arise for spouses who move to Texas or who marry later in life at estate planning in a community property state.
Creditors. Property that passes by survivorship is still subject to community debts and to certain creditor claims. Couples who carry significant unsecured debt or business related exposure should weigh how survivorship will affect the survivor’s balance sheet and liquidity.
Tax planning. Federal estate tax planning is less common for many couples due to the current exemption amount, yet income tax basis planning remains relevant. Property that passes to the survivor by survivorship can still receive basis adjustments, but planning for step up treatment can differ depending on title structure and the characterization of the property. Coordination with tax advisers helps reduce capital gains exposure later.
Medicaid and long term care. A Lady Bird deed or a trust may address long term care planning objectives more directly for homestead property. A CPSA does not by itself create the same set of features some families want when planning for public benefits eligibility or estate recovery. The right tool depends on age, health, and the couple’s asset mix.
Out of state property. Property in another state is governed by that state’s real property law for title transfer issues. A Texas CPSA may not control the transfer of land outside Texas. Deeds or ancillary planning for the other state may be needed.
Create, revoke, or change
Creation. The process is straightforward. Identify the community assets to cover. Decide whether the agreement should apply to all community property or only certain assets. Draft a written agreement that states the survivorship intent in clear terms. Include a schedule of assets if you want clarity about what is covered at signing. Sign the agreement as spouses in the presence of a notary. Consider recording the agreement or a memorandum in the county where real property sits. For accounts, provide copies to financial institutions so their internal records reflect the survivorship nature of the assets.
Coordination. Align the CPSA with your will, any trust, beneficiary designations, and real estate deeds. The agreement should work in harmony with the rest of your plan. Couples who moved to Texas from a separate property state should also review characterization and title documentation. See thoughts on those transitions at estate planning in a community property state.
Revocation or amendment. Chapter 112 allows spouses to revoke or change a CPSA. The statute recognizes methods set out in the agreement itself. If the document is silent, revocation is generally done by a written instrument that is signed by both spouses or by other methods described in the chapter. Record revocations or amendments affecting real property in the same county where the original memorandum was recorded to keep the chain of title clear. For the statutory basis on revocation, see Chapter 112’s revocation provisions (law.justia.com).
After death procedure. The survivor collects a certified copy of the death certificate, the executed CPSA, and any recorded memorandum or deed that contains the survivorship language. For real estate, present these documents to the title company if a sale or refinance is planned. For accounts, present the documents to the bank or brokerage. If a third party hesitates to honor the agreement, the survivor can seek a court adjudication confirming the survivorship right under Chapter 112. That adjudication should not be confused with a full probate administration, though local practice can vary. The adjudication simply confirms the effect of the survivorship agreement.
What happens without a CPSA
Couples who do not use survivorship planning leave the default community property system in place. When the first spouse dies, the survivor keeps one half of the community and the other half passes by will or by the intestacy rules. If the deceased spouse has children who are not also children of the surviving spouse, those children can inherit the deceased spouse’s one half of the community. The survivor may end up co owning the home or other assets with stepchildren. That result leads to conflict and to court costs in many families. Survivorship planning prevents that outcome for the covered assets by giving the survivor full ownership at death. For a clear overview of these default outcomes, see Texas community property laws and estate planning.
Some families try to use an affidavit of heirship after a death to move title to real property without opening a probate case. An affidavit of heirship can work in limited situations, usually after a passage of time and with unanimous cooperation. Title companies may reject an affidavit if there are competing heirs or if the facts are incomplete. A CPSA avoids that uncertainty by transferring title to the survivor at the moment of death, which gives a cleaner path to sell, refinance, or retitle property.
How a CPSA fits with probate
A CPSA does not eliminate probate entirely in all cases. It pulls the covered assets out of the probate estate so they pass by contract. If the deceased spouse owned separate property or if community property outside the CPSA exists, those assets may still require a probate filing or a small estate process. Many couples keep a simple will in place as a safety net for assets not covered by survivorship or beneficiary designations, along with a powers and directives package for healthcare and finances. Thoughtful planning ties these parts together so the survivor has immediate access to the home, accounts for monthly bills, and other essentials, while the estate administration deals with what remains.
A short summary of Texas probate procedures and how survivorship rights interact with title and institutions can be found at probate and rights of survivorship in Texas. That page also addresses practical experiences with title companies that sometimes ask for a court order despite the statute’s plain language. Real world planning responds to that reality so the survivor is not left in limbo.
Key takeaways for couples
Texas law allows spouses to agree that community property will become the property of the survivor. The agreement must be written and signed by both spouses. Phrases that include with right of survivorship or similar language make the intent clear. A valid CPSA is effective without a court adjudication. Even so, recording and careful coordination with deeds and accounts help avoid friction after a death. Without survivorship planning, a deceased spouse’s one half of community property may pass to children, including children from a prior relationship. That leaves the survivor co owning property with stepchildren, which can lead to conflict. These points are supported by the text of Chapter 112 and by practical experience discussed in the resources linked throughout this article (law.justia.com).
Frequently asked questions
What is the difference between community property and community property with right of survivorship?
Ordinary community property does not include survivorship rights. At death, the deceased spouse’s one half belongs to the estate and passes by will or by intestacy. Community property with right of survivorship moves directly to the surviving spouse by contract. See Texas Estates Code Chapter 112 and the discussion of default community rules at the Hailey Petty article on Texas community property laws and estate planning (law.justia.com, haileypettylaw.com).
Do both spouses have to sign the survivorship agreement?
Yes. A CPSA must be in writing and signed by both spouses to be valid under the statute. See Chapter 112 for the signature requirement (casetext.com).
Is a CPSA effective without a court order?
Yes. If a CPSA satisfies Chapter 112, it is effective without a court adjudication. The survivor can seek a court adjudication if a bank or title company refuses to honor the agreement. See the statutory provisions and practical guidance on this point at the probate process article linked above (law.justia.com, haileypettylaw.com).
Can a CPSA be revoked?
Yes. Revocation is allowed under Chapter 112. Couples can state revocation methods in the agreement. If silent, the statute provides methods such as a written instrument signed by both spouses or other methods identified in the chapter. Record any revocation affecting real property in the county records. See the revocation provisions in Chapter 112 (law.justia.com).
What if there are children from a prior marriage?
A CPSA gives the survivor full title to covered property. That can disinherit children of the deceased spouse with respect to those assets. In blended families, many couples use asset specific survivorship or trusts to balance support for the survivor with inheritances for children. See the overview of community rules at the Hailey Petty article and speak with counsel before finalizing a CPSA that applies to all assets (haileypettylaw.com).
Should we record a CPSA?
Recording helps with real estate title. A recorded agreement or memorandum gives the title company confidence to rely on the survivorship right without asking for a court order. Banks and brokerages may still request their own forms. A short discussion of this practice issue appears in the probate process article and in commentary from other Texas practitioners (haileypettylaw.com, legaltalktexas.hammerle.com).
Does a CPSA replace a will?
No. A CPSA controls only the assets it covers. A simple will is still advised to address separate property, personal effects, or community property that is not subject to the survivorship agreement. A will also names an executor and addresses guardianship for minor children.
Can we limit a CPSA to the homestead?
Yes. Couples often use a CPSA to cover the homestead and everyday accounts while excluding business interests or investment property that they prefer to handle through a trust or through a will.
What if we own property outside Texas?
Out of state real estate requires attention to that state’s law. Consider a deed in the other state or a trust plan that crosses state lines. A Texas CPSA might not control title to land in another state.
What happens if a title company rejects the CPSA?
The survivor can seek a court adjudication under Chapter 112 to confirm the survivorship rights. That is a targeted court process and is not the same as opening a full probate for the estate.
Speak with a Texas attorney
If you want to protect your spouse from probate delays for your home and accounts, a CPSA is a straightforward tool with strong statutory support. Our team drafts CPSAs, coordinates recording and account forms, and aligns survivorship language with wills, trusts, and deeds. Contact Hailey Petty Law Firm to schedule a consultation and receive a plan that fits your assets and your family. Visit our website to get started: haileypettylaw.com.
This page provides general information and does not create an attorney client relationship. For advice tailored to your situation, consult a Texas estate planning attorney.