Common Misconception – My Spouse Will Own Our House Outright When I Die.

One the most common misconceptions about homeownership among married couples is that when one spouse dies, that the house simply goes to the surviving spouse automatically because they both own the home. This is often not the case in Texas. Many surviving spouses have decided to sell their home only to discover that they don’t have the authority to sell on their own because the home had to be administered as part of their deceased spouse’s estate in order to transfer their share of the home to the surviving spouse.


Tenancy in common is the most common type of joint ownership in Texas. Texas law presumes this type of ownership unless otherwise stated on the deed or in writing. (Tex. Estates Code § 101.002.) This is the type of ownership that most married couples have. With respect to a tenancy in common, all owners hold an individual, undivided ownership interest in the property. Whenever multiple people join in acquiring an asset they are automatically presumed to be tenants in common. Unless specific language has been inserted on title documents saying otherwise, each joint owner will be a tenant in common with the others.


Texas provides that when two or more people jointly own property and one passes away, the deceased owner's interest does not pass to the remaining owners and instead passes by will or intestacy. (Tex. Estates Code § 101.002.)


If two joint owners own the property and one passes away, the other does not take the deceased owner’s interest. (Tex. Estates Code § 101.002.) Instead, the surviving owner becomes a tenant in common with whoever inherits the deceased owner’s interest. Even if the deceased owner’s interest was their spouse, this type of ownership does not avoid probate.


Tenancy in common property must be administered as part of the decedent’s estate in order to transfer the decedent’s interest. One owner can leave his or her interest in jointly owned property to another owner of the same property by will. However, the will still must be probated to transfer the interest to the remaining owner.


So is it true that when one spouse dies that the other spouse automatically has full legal rights and ownership of the home? No – in most instances the surviving spouse will need to go through probate to ensure that the interest of their deceased spouse is legally transferred.


To learn more about the options available to simplify the process of passing your home to your surviving spouse and children or other beneficiaries according to your wishes without court involvement, delay or additional expense, you should speak with a qualified estate planning attorney who will help you determine the best way to meet your family’s current and future needs.


Justin Crain