In Texas, joint tenants with the right of survivorship automatically take a deceased co-owner’s share without probate, but only if the owners signed a written survivorship agreement that meets the Estates Code’s requirements. Texas does not assume survivorship from the fact that two people hold title together. The default is a tenancy in common, where a deceased owner’s share passes to their heirs or under their will rather than to the other owners. Getting the paperwork right at the start is what makes the arrangement work later.
How To Create a Valid Survivorship Right in Texas
Section 111.001 of the Estates Code governs survivorship between people who are not married to each other: siblings, parent and child, business partners, unmarried couples. The requirements are short and strict.1State of Texas. Texas Estates Code 111.001 – Right of Survivorship Agreements Authorized The agreement must be in writing. It must be signed by the owner whose interest will eventually transfer, and in practice every owner should sign. And it must say, in direct language, that the surviving owner takes the deceased owner’s interest.
The wording carries weight. Phrases like “with right of survivorship” or, better, “with right of survivorship and not as tenants in common” are what courts look for. Texas judges have struck down documents that hinted at survivorship without saying it plainly. Creative phrasing is a bad idea here.
Married Couples Follow a Separate Chapter
Because Texas is a community property state, spouses use Chapter 112 instead. A community property survivorship agreement lets both spouses agree that all or part of their community property passes to the survivor at the first death.2State of Texas. Texas Estates Code 112.051 – Agreement for Right of Survivorship in Community Property The agreement must be written, and both spouses must sign (not just the one who will die first). It can cover community property the couple already owns or will acquire later.
One real advantage over the non-spouse version: either spouse can revoke the agreement alone, by signing a written revocation and delivering it to the other spouse. If the agreement sets its own revocation method, that method controls.
Drafting, Signing, and Recording the Document
You can create survivorship either in the deed itself (a survivorship deed) or in a separate agreement that references an existing deed. Either way, a few details matter:
- Every owner’s full legal name, exactly as it appears on government identification. Mismatches cause title problems later.
- The property’s full legal description (metes and bounds, or lot and block, or a survey reference), not just the street address. You can pull the legal description from your current deed or the county appraisal district. A street address alone is not precise enough to hold up.
- Direct survivorship language. Something like: “Upon the death of any joint owner, the deceased owner’s interest shall survive to and vest in the surviving joint owner(s), with right of survivorship, and not as tenants in common.”
All parties sign before a Texas notary public. Texas caps notary fees at $10 for the first signature acknowledged and $1 for each additional signature.3State of Texas. Texas Government Code 406.024 – Fees Charged by Notary
Then file the signed, notarized original with the County Clerk in the county where the property sits. The base statutory recording fee is $5 for the first page and $4 for each page after that, but mandatory archive and records-management surcharges push the real cost to roughly $25 for a one-page document plus about $4 per additional page.4State of Texas. Texas Local Government Code 118.011 – Fee Schedule The clerk stamps the document with a volume and page number and sends the original back.
Technically, recording is not required for the agreement to bind the parties themselves. Skipping it is still a mistake. An unrecorded agreement gives no public notice, which leaves room for future buyers, lenders, and creditors to claim they didn’t know about the survivorship right. For the cost involved, record it.
What the Surviving Owner Does After a Death
Title transfers automatically by operation of law the moment a joint owner dies, but the public record does not update on its own. The survivor has to clean it up before the property can be sold, refinanced, or insured by a title company.
Start by ordering a certified copy of the death certificate from the Texas Department of State Health Services or the local registrar. The fee is $20 for the first certified copy and $3 for each additional copy ordered at the same time.5Texas Department of State Health Services. Costs and Fees
Then prepare an Affidavit of Death. This is a sworn statement that identifies the deceased joint owner, points to the recorded survivorship agreement by volume and page number, and confirms that the survivor now holds full title. Sign the affidavit before a notary. File it, together with a certified copy of the death certificate, at the same County Clerk’s office where the original survivorship agreement was recorded. Recording costs follow the same schedule as any other real property filing, usually around $25 for a one-page affidavit.
No probate court order is needed. No executor has to be appointed. The whole process can usually be wrapped up within a few weeks of receiving the death certificate.
Survivorship Overrides a Will
This catches families off guard. A right of survivorship agreement is a nonprobate transfer, so the property passes under the agreement no matter what the deceased owner’s will says.6Texas State Law Library. Nonprobate Property If a will leaves the house to the children but a survivorship agreement sends it to a co-owner, the co-owner takes it. The probate court has no authority over the property because the property never entered the estate.
The classic trap: someone signs a survivorship agreement with a spouse, later divorces, forgets to revoke the agreement, and executes a new will leaving everything to the children. Unless the agreement is revoked or a new deed is recorded, the property still goes to the former spouse. Any survivorship arrangement needs to be reviewed whenever the rest of the estate plan changes.
A surviving owner who doesn’t want the inheritance can refuse it by filing a qualified disclaimer, but the deadline is nine months from the date of death. The disclaimant cannot have accepted any benefit from the property (such as collecting rent) and cannot direct who receives it instead.7GovInfo. Internal Revenue Service, Treasury 25.2518-2
Tax Issues You Should Factor In
Step-Up in Basis
Assets included in a decedent’s taxable estate generally receive a new cost basis equal to fair market value at death, which wipes out capital gains that built up during their lifetime. For non-spouse joint tenants, only the deceased owner’s share gets the reset. If two siblings each own half of a property bought for $200,000 and worth $500,000 when one dies, the deceased sibling’s half steps up to $250,000, the survivor’s half stays at $100,000, and the combined basis is $350,000.8Office of the Law Revision Counsel. 26 USC 1014 – Basis of Property Acquired From a Decedent
Married couples in Texas do much better. Under IRC Section 1014(b)(6), when one spouse dies both halves of community property get stepped up. On the same $200,000-to-$500,000 facts, the surviving spouse’s entire basis resets to $500,000.8Office of the Law Revision Counsel. 26 USC 1014 – Basis of Property Acquired From a Decedent This is why spouses should think hard before converting community property into any other form of joint ownership.
Gift Tax When You Add a Non-Spouse to Title
Adding anyone other than your spouse as a joint owner with survivorship rights can be a taxable gift. Add an adult child to a $400,000 home as a 50% joint owner, and you have potentially made a $200,000 gift. The 2026 annual gift tax exclusion is $19,000 per recipient; the excess counts against your lifetime exemption and requires filing a gift tax return.9Internal Revenue Service. Frequently Asked Questions on Gift Taxes Transfers between spouses are generally covered by the unlimited marital deduction and do not raise this issue.
Creditors, Mortgages, and Medicaid
Survivorship does not shield property from creditors while the owners are alive. A creditor of one joint owner can place a lien on that owner’s interest and, in some cases, force a sale.
At death, things shift. When the owner carrying the debt dies first, their interest ends at the moment of death rather than passing as a transferable asset, so a judgment lien against them often does not follow the property into the survivor’s hands. If the survivor is the debtor instead, the lien stays attached and now covers the whole property. Federal tax liens behave differently: under 26 U.S.C. ยง 7403 the IRS can push for a judicial sale of the entire property during the owners’ lifetimes to collect one owner’s tax debt, with the non-liable owner entitled to their share of the proceeds.
Any existing mortgage comes with the property. Survivorship transfers ownership, not a clean balance sheet. If a $150,000 mortgage sits on the home when your co-owner dies, you now hold full title and full responsibility for the loan. Federal law under the Garn-St Germain Act generally stops lenders from enforcing a due-on-sale clause when property passes to a surviving joint tenant, so you can usually keep paying on the existing terms. Still, tell the lender and the homeowner’s insurance carrier promptly.
For Medicaid, Texas currently limits estate recovery to the probate estate. Property that passes directly to a survivor through a right of survivorship agreement bypasses probate and generally escapes Medicaid reimbursement claims. Federal rules let states expand recovery to nonprobate assets, so this protection is not guaranteed to last forever, but as the program stands today, survivorship arrangements remain a useful tool for older Texans planning around long-term care.
Revoking or Severing the Agreement
Survivorship is not permanent. How you unwind it depends on who the owners are.
For community property survivorship agreements between spouses, Section 112.054 gives three routes. If the agreement spells out its own revocation procedure, follow it. If it does not, either spouse can revoke it by signing a written instrument and delivering it to the other spouse; no mutual consent is required. A spouse can also effectively revoke the agreement as to a specific asset by selling or otherwise disposing of that asset, so long as the disposition does not break the agreement’s terms or any applicable law.10Texas Public Law. Texas Estates Code 112.054 – Revocation of Agreement
For non-spouse joint tenants under Section 111.001, the statute does not lay out a revocation procedure as cleanly. A joint tenant can usually sever survivorship by conveying their interest to a third party, which breaks the joint tenancy and leaves the new owner holding as a tenant in common. All joint owners can also agree in writing to end the survivorship. Whichever path you take, record the termination document with the County Clerk so the public record matches reality.