Absent any language to the contrary, is it true that the beneficiaries of a Transfer on Death Deed own the property as separate property? For example, a listed beneficiary is Bob Smith. He is is married to Sue Smith. Does Bob own it as separate property? I believe the answer is yes Bob would own it as separate property yet I have scoured the internet and this website and have not found a clear answer to my question. Any general guidance is appreciated. Thank you.
Read the deed. And then check state statutes where the property is located.
I did both. It is not clear hence the question. Thanks.
Texas and New Mexico in particular.
Generally minerals acquired by gift or estate are separate property of named recipien, at least in Texas. However, it may depend on the language as interpreted by statute or case law. Consult a title attorney in the state where land is located.
Allow me to ask this a different way. Assuming there is nothing in the Transfer on Death Deed to indicate that the “beneficiaries” receive the property separate property or community property (and no gift deed language), is there any case law or statute in Texas or New Mexico that indicates that such beneficiaries receive the interest as separate property? I have checked the statutes and was unable to conclude anything meaningful. I have asked other attorneys who frankly shared my sentiment and knew of nothing conclusive despite a general intent that the beneficiaries are to receive it as separate property absent any language to the contrary. I pose this question to anyone with legal expertise hence the point of me asking this question in the Law & Legal section. Thank you for any assistance.
I give you the same statement as above. It may hinge on the exact wording in the deed as a whole. There are rarely one-size-fits-all answers to a legal question and here is no exception as every deed will have variances in language. For an accurate legal opinion, you need a Texas title attorney (specialty area) to review the deed and circumstances. Many general attorneys and especially those with limited knowledge of Texas community property law will not be able to answer your question, even looking at the language.
Is there any case law in Texas or New Mexico that addresses whether it’s necessary to specify that “beneficiaries” in a Transfer on Death Deed must be specified as “separate property” (or use Gift Deed language etc), in order for the “beneficiaries” in a Transfer on Death Deed to own the property as separate property? I hope you agree that asking for a reference to case law does not require review of a document to my specific situation. I am just looking for general info preferably from an attorney or other legal professional. Thanks.
Hi John,
I’m not in Texas OR an attorney, so, while I may not have either of those qualifications, I have been a Landman for almost 20 years and have seen many of these situations across many states. It seems like there is a concern that the spouse of a beneficiary could lay claim to Deed on Death/beneficiary interest as community property, as expressed in your scenario of Bob & Sue Smith.
For example, even though Colorado is not a community property state, they make a few limited exceptions to the 50/50 division of all assets and debts acquired during a marriage, including student debt and inheritance. The Forbes website has a reasonable and short article pertaining to this that I found by searching, “Is Colorado a community property state?”
Utah, on the other hand, treats it more as equitable distribution based on the length of the marriage and assets and earning brought into the marriage by each party. I found a brief article on this at the FindLaw website by searching the same thing for Utah.
Inheritance does also appear to be an exception allowed in Texas, even though it is a community property state. One reference stated, “Under Texas law, all of the property and earnings of both spouses acquired during the marriage is considered to be community property (property owned together by the spouses). It makes no difference whose income paid for it or whose name is on the title, contract, account, or note, as long as it was purchased between the date of marriage and the date of the divorce and was not a gift, inheritance, or personal injury settlement.”
I hope that helps a little.
Transfer on deed laws vary significantly depending upon the state where the minerals are located. Also, a review of the items in questions by an attorney would be in order. You should have an attorney licensed in the states where the minerals are located review the documents.
This post is not legal, tax or investment advice. Reading or responding to this post does not create an attorney/client relationship.
Thank you. I have seen some online information from an attorney that Transfer on Death deeds are a product of statute yet none of the statutes I’ve read in New Mexico or Texas confirm that the beneficiary would own it as separate property. Further Transfer on Death Deeds are not generally considered to be gift deeds. I’ve seen hundreds of TODDs and I don’t recall ever seeing gift deed language. So at this point, it is still not clear. I have asked around and will post more info once I receive it.
For Texas, the answer is in the Family Code and the cases interpreting it. Inherited property in Texas is separate property.
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