Married couples often rely on bank or brokerage representatives to handle the paperwork when they set up their accounts. The spouses may sign forms and then discuss the types of accounts or authorizations after they have already signed the forms.
This begs the question as sto what happens when there is evidence that boxes on the forms were checked after the spouses signatures were placed on the forms? As an example, what if the the “survivorship” box was checked on the brokerage representative after the couple signed the forms? If this post-signature box is checked, is it valid to have the account transfer to the surviving spouse rather than the children? Shouldn’t the order of the signature and checking of the box matter?
The court addressed this fact pattern in the Estate of Janice Keith Manley, Deceased, 2025 WL 2262403 (Tex. App.—Dallas 2025), which involved a brokerage account form that was signed by the spouses and then after the signatures, the brokerage firm checked the “survivorship” box on the form.
Facts & Procedural History
The decedent and her husband married in 1993. They both had children from previous marriages. By 2001, the husband had opened investment accounts with Merrill Lynch in his name alone.
The couple’s relationship became strained. In 2003, as part of their marital reconciliation, they agreed to add the decedent’s name to the Merrill Lynch accounts. On December 22, 2003, both spouses signed a Client Relationship Agreement (“CRA”) with Merrill Lynch.
When the decedent died unexpectedly in 2019 at age 73, her Last Will and Testament from 1989 left her entire estate to her three children from her previous marriage. This is where the probate litigation started. Two of the children challenged the surviving husband’s claim to the Merrill Lynch accounts.
The surviving husband presented Merrill Lynch’s business records showing a completed CRA form with the same signatures and date, but also containing the account numbers and JTWROS designations.
The daughter discovered what she called a “blank” CRA form among the decedent’s personal effects. This form contained only the signatures of both spouses and the date December 22, 2003, but lacked account numbers or the “JTWROS” (“Joint Tenants With Right of Survivorship”) markings. The children argued this discrepancy proved the survivorship designations were invalid because they were added after the signatures were placed on the document.
The case proceeded to jury trial in the Collin County Probate Court. The question was whether the Merrill Lynch accounts constituted valid community property survivorship agreements. The jury found that both spouses had agreed the accounts would belong to the surviving spouse and had consented to Merrill Lynch making the necessary designations. This appeal followed.
Community Property Survivorship Agreements Under Texas Law
Section 112.051 of the Texas Estates Code provides for community property survivorship agreements. This statute provides that “spouses may agree between themselves that all or part of their community property becomes the property of the surviving spouse on the death of a spouse.” The law departures from traditional community property principles–which typically require community property to pass through the probate administration process.
These agreements have not always been allowable. Prior to 1987, attempts to create survivorship rights in community property were held unconstitutional in Texas. The Legislature passed a constitutional amendment that year, specifically authorizing spouses to create these agreements. Two years later, lawmakers enacted the statutory framework that governs these arrangements today that is now codified in the Texas Estates Code.
The statute reflects a deliberate legislative choice to simplify asset transfers between spouses while maintaining appropriate safeguards. Unlike survivorship agreements between non-spouses, which require more stringent formalities, agreements between married couples receive preferential treatment under Texas law. The Legislature recognized that spousal agreements are less vulnerable to fraud and undue influence, justifying the relaxed requirements.
What Formalities Does Texas Law Require?
Section 112.052 establishes the specific requirements for creating valid community property survivorship agreements. Specifically, the statute requires that agreements be “in writing and signed by both spouses.” Unlike most other estate planning documents, the law does not require witnesses or notarization for spousal survivorship agreements.
The statute does not require any specific language to create these agreements. However, the statute provides several safe harbor phrases that automatically create survivorship rights when included in written agreements. These include “with right of survivorship,” “will become the property of the survivor,” “will vest in and belong to the surviving spouse,” and “shall pass to the surviving spouse.” This flexibility allows parties to create survivorship agreements using various forms of language. The focus is on the intent to create survivorship rights.
The 2011 amendment to Section 112.052 added language clarifying that “a survivorship agreement may not be inferred from the mere fact that an account is a joint account or that an account is designated as JT TEN, Joint Tenancy, or joint, or with other similar language.” This addition addressed concerns about inadvertent creation of survivorship rights through routine account designations that might not reflect genuine agreement between spouses.
Can Financial Institutions Complete Forms After Spouses Sign?
This brings us to the question in this case. Can the financial instituion complete the survivorship agreement after the spouses sign the agreement? Put another way, is an agreement valid if the spouses sign first and then the financial institution checks the boxes on the form to make it a survivorship agreement?
In this case, the children argued that Texas law requires a specific order where signatures must come last, after all terms are completed. They contended that allowing post-signature markings would undermine the statutory requirements for written agreements signed by both spouses.
The court of appeals rejected this interpretation. It concluded that there was no authority requiring such strict chronological formalities. The court noted that imposing a rigid sequence requirement “would render a married couple’s survivorship agreement ineffective if they sign an account agreement and then a minute later they check the joint tenancy with right of survivorship box and add the pertinent account numbers.” According to the appeals court, such an interpretation would create arbitrary distinctions that serve no meaningful legal purpose.
The court emphasized that the statute requires written agreements signed by both spouses and it does not specify when various portions of the written agreement must be completed relative to the signing. This is a decision that is based on the concept that the legislature chose not to include timing requirements in the statute, and courts should not read additional requirements into the law that the legislature did not see fit to adopt.
The Takeaway
This case shows that, unlike most estate planning documents, the survivorship agreement does not have a lot of formalities that are required for it to be valid. Even if there is evidence that the document was altered after it was signed, as in this case, the finder of fact may conclude that the parties intended the alteration. This can have a significant impact on the distribution of one’s estate. As in this case, it resulted in the brokerage accounts passing to the surviving spouse in full rather than to the two children named in the decedent’s will.
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