In re Estate of Cunningham, 390 S.W.3d 685 (Tex. App.—Dallas 2012, no pet.).



Community Property Survivorship Agreements


Husband and Wife entered into a community property survivorship agreement by using a fill-in-the-blank form with the assistance of family members rather than an attorney.  After Husband died, the trial court granted Wife’s application to adjudicate the agreement as valid.  Four months later, one of Husband’s children (Wife’s stepson) filed a bill of review under Probate Code § 31 claiming that the court made a substantial error because some of the property allegedly covered by the agreement was actually Husband’s separate property.  The trial court denied the bill of review.


The appellate court reversed.  The court explained that the community property survivorship agreement, although purporting to include “all inheritance property” within its scope, did not meet the requirements of Family Code §§ 4.203 and 4.205 to act as a conversion of separate property (the inherited property) into community property which would then be covered by the survivorship agreement.  For example, the agreement did not state that Husband and Wife were converting separate property into community property.  In addition, there was no evidence showing that either spouse received the required fair and reasonable disclosure of the legal effect of converting separate property to community property.  Because the survivorship agreement did not convert Husband’s separate property into community property, the original order was substantially in error and the trial court erred in not granting the bill of review.


Moral:  A community property survivorship agreement is designed to provide survivorship rights to community property, not to convert separate property into community property.  Unless the agreement also meets the requirement of a conversion agreement, it will be ineffective to create survivorship rights in separate property.