Section 114.057 of the Estates Code

Revocation by Certain Instruments; Effect of Will or Marriage Dissolution.

(a) Subject to Subsections (d) and (e), an instrument is effective to revoke a recorded transfer on death deed, or any part of it, if the instrument:

(1) is one of the following: (A) a subsequent transfer on death deed that revokes the preceding transfer on death deed or part of the deed expressly or by inconsistency; or (B) except as provided by Subsection (b), an instrument of revocation that expressly revokes the transfer on death deed or part of the deed;

(2) is acknowledged by the transferor after the acknowledgment of the deed being revoked; and

(3) is recorded before the transferor's death in the deed records in the county clerk's office of the county where the deed being revoked is recorded.

(b) A will may not revoke or supersede a transfer on death deed.

(c) If a marriage between the transferor and a designated beneficiary is dissolved after a transfer on death deed is recorded, a final judgment of the court dissolving the marriage operates to revoke the transfer on death deed as to that designated beneficiary if notice of the judgment is recorded before the transferor's death in the deed records in the county clerk's office of the county where the deed is recorded, notwithstanding Section 111.052.

(d) If a transfer on death deed is made by more than one transferor, revocation by a transferor does not affect the deed as to the interest of another transferor who does not make that revocation.

(e) A transfer on death deed made by joint owners with right of survivorship is revoked only if it is revoked by all of the living joint owners.

(f) This section does not limit the effect of an inter vivos transfer of the real property.

Added 84th Leg., R.S., Ch. 841 (S.B. 462)

Editor Comments

This section of the Texas Real Property Transfer on Death Act adopts the core substance of Section 11 of the Uniform Real Property Transfer on Death Act. Cf. Laborde v. First State Bank & Trust Co., 101 S.W.2d 389, 391 (Tex.Civ.App.–San Antonio 1936, ref'd) ("[W]here there are two testamentary instruments, subject to probate and which have been probated, as in this case, both instruments must be considered and construed together, so as to ascertain the true intention of the testator, and give effect to every provision in both instruments, in so far as they are not materially inconsistent with each other, and are susceptible of ascertainment and enforcement, and do not contravene the laws of the land.").

Nevertheless, this section of the TRPTODA differs significantly from Section 11 of the Uniform Act. Cf. Morgan v. Davenport, 60 Tex. 230, 237 (1883) ("We therefore hold that under the statutes of this state there can be no such thing as the revocation of a valid written will, unless the same be revoked in one of the manners prescribed by the statute.").

First, under the Uniform Act, instruments that may revoke a recorded transfer on death deed include "an inter vivos deed that expressly revokes the transfer on death deed or part of the deed." That language does not appear in this section. However, Section 114.102 governs the effect of a subsequent conveyance on a recorded transfer on death deed. That section is analyzed at length in its Editor Comments.

Second, this section provides that a will may not revoke or supersede a transfer on death deed. The Uniform Act does not address the issue in its text. However, the comment to Section 11 states: "Revocation by an instrument not specified, such as the transferor's will, is not permitted." Note that the TRPTODA does not address the relationship between a revocable trust instrument and a transfer on death deed.

Third, this section includes a marriage dissolution provision. The Uniform Act does not address marriage dissolution in its text, intentionally leaving the issue to each enacting state. However, the act's drafters apparently assumed that "revocation by divorce" would be automatic and not dependent on recordation. The comment to Section 11 states: "On revocation by change of circumstances, such as by divorce or homicide, see Section 13 and the accompanying Comment."

Fourth, the rule provided by Subsection (e) differs from the corresponding rule in Section 11 of the Uniform Act. Due to the modified definition set forth in Section 114.002(a)(3), Subsection (e) does not apply to an owner of community property with a right of survivorship. The effect is not clear. Note that community property survivorship agreements are generally governed by Chapter 112 of the Estates Code.

Fifth, the Uniform Act provides that "[a]fter a transfer on death deed is recorded, it may not be revoked by a revocatory act on the deed." The TRPTODA omits that language. Neither the intent nor the effect of the omission is clear. Cf. Magee v. Merriman, 19 S.W. 1002, 1004 (Tex. 1892) ("We cannot assume that the original deed was destroyed when the record thereof was destroyed, because the deed is simply in the possession of the clerk, and deposited in his office, so long only as is required to record it."); Stanley v. Epperson, 45 Tex. 644, 653 (1876) ("[A]n erasure or alteration of a deed after delivery, whether recorded or not, does not reinvest the title in the grantor or abrogate or annul the title of the grantee.").

Note that the TRPTODA does not limit or otherwise address who may record a transfer on death deed, an instrument of revocation, or notice of a final judgment dissolving the transferor's marriage. It appears that any person in possession of an acknowledged transfer on death deed or an acknowledged instrument of revocation may record the document and that any person with knowledge of such a judgment may record notice of it. Cf. Chisholm v. Bewley Mills, 287 S.W.2d 943, 946 (Tex. 1956) ("When the validity of the claim has been established by judgment, the executor or administrator has an interest in the proper classification and prompt payment thereof to the extent the assets of the estate will permit.").

The marriage dissolution provision contained in Subsection (c) of this section, which is unique to Texas, deserves additional analysis. Cf. In re Estate of Nash, 220 S.W.3d 914, 917 (Tex. 2007) ("The language of the pre-1997 versions of section 69 was clear despite the more recent phrase added by the Legislature: those provisions in a will that favor a former spouse are of no effect.").

The provision states a mandatory rule of law and not a rule of construction that yields to a contrary intention contained in the transfer on death deed. Cf. Section 123.001(b), Estates Code ("unless the will expressly provides otherwise: (1) all provisions in the will [] shall be read as if the former spouse and each relative of the former spouse who is not a relative of the testator had failed to survive the testator").

The provision governs only recorded transfer on death deeds. No rule is provided for the admittedly limited situation in which the marriage between a transferor and a designated beneficiary is dissolved after a transfer on death deed is acknowledged but before the deed is recorded.

The most important question concerning the provision is what does "revoke the transfer on death deed as to that designated beneficiary" mean. It likely means that the designation is void (i.e., of no legal effect) and that the deed is construed as if the transferor's former spouse was never identified as a designated beneficiary. Other alternatives–for example, that it means the deed is construed as if the former spouse predeceased the transferor–lack textual support. Cf. Moss v. Helsley, 60 Tex. 426, 437 (1883) ("The question then arises as to what disposition shall be made of a void devise or bequest under our system.").

Another question is why the ending clause ("notwithstanding Section 111.052") was added. For several reasons, the clause is not necessary. Foremost, with regard to the validity of a beneficiary designation made in a transfer on death deed ("deed authorized under this chapter"), the specific rule set forth in this section prevails over any general rule provided by a section located in Chapter 111. Other well-founded arguments exist as to why Section 111.052 does not affect the validity of a beneficiary designation made in a transfer on death deed. In short, inclusion of the ending clause was unnecessary but harmless.

—Steve Smith

Court Decisions

No appellate court decision has interpreted any section of the TRPTODA.

Legal Commentaries

• Johanson's Texas Estates Code Annotated at 116 ("Unlike will and revocable trust provisions in favor of a former spouse, which are automatically revoked by a final decree of divorce, under § 114.057(c) a TOD deed is not revoked unless the final judgment is recorded before the transferor's death.")

• New Tool in the Toolbox at 3-4 ("As with most new statutes, there are some unanswered questions and potential pitfalls to avoid. . . . Many people erroneously believe that tearing up a deed revokes it. It is a recorded document, and the proper procedure must be followed to revoke it.")

• Texas TOD Deed Form at 1 ("[A] married couple can create a TOD deed that allows them to continue to own property with rights of survivorship during life while passing the property to children once both spouses are deceased. But this does not prevent the surviving spouse from revoking the deed.")

• Transfer on Death Deed, Survivorship Agreements, Lady Bird Deeds at 5 ("[A] will may not revoke or supersede a transfer on death deed, however one title insurance underwriter has issued a guideline that requires a quitclaim from a beneficiary named under a will that is different than the beneficiary in a TODD.")

• Transfer on death deeds in Texas: A disaster for many at 1 ("The TOD deed overrides any contrary provisions in the owner’s will, even a will signed after the TOD deed. . . . It could also lead to some pretty nasty litigation if the beneficiary under the will is different from the beneficiary named in the TOD deed.")

Uniform Act Text

Section 11. Revocation by Instrument Authorized; Revocation by Act Not Permitted.

(a) Subject to subsection (b), an instrument is effective to revoke a recorded transfer on death deed, or any part of it, only if the instrument:

(1) is one of the following: (A) a transfer on death deed that revokes the deed or part of the deed expressly or by inconsistency; (B) an instrument of revocation that expressly revokes the deed or part of the deed; or (C) an inter vivos deed that expressly revokes the transfer on death deed or part of the deed; and

(2) is acknowledged by the transferor after the acknowledgment of the deed being revoked and recorded before the transferor's death in the public records in [the office of the county recorder of deeds] of the [county] where the deed is recorded.

(b) If a transfer on death deed is made by more than one transferor:

(1) revocation by a transferor does not affect the deed as to the interest of another transferor; and

(2) a deed of joint owners is revoked only if it is revoked by all of the living joint owners.

(c) After a transfer on death deed is recorded, it may not be revoked by a revocatory act on the deed.

(d) This section does not limit the effect of an inter vivos transfer of the property.

Approved by ULC in 2009 (Uniform Act)

Uniform Act Comment

The official comments to the Uniform Act provide authoritative commentary regarding the drafters' intent.

For example, the comment to Section 11 states in part:

In some instances, revocation and ademption have the same practical effect: the designated beneficiary of the property receives nothing. Nothing in this section changes that fact, as indicated in subsection (d). However, there are other instances where the doctrines have differing effects.

The full comment is available on the Uniform Law Commission website.

The comment is one of the Uniform Act's most important, covering several key concepts.