Probate Avoidance in Texas: CP-ROS Deeds vs. Trusts

 Posted on October 24, 2025 in Estate Planning

Most people believe that a revocable living trust is the only way to avoid probate in Texas. What far fewer know is that there is a lesser-known alternative to a revocable living trust that is tucked away in the Texas Estate Code under Section 112.051 (Community Property with Right of Survivorship (CP-ROS) agreements).

A CP-ROS deed is a straightforward document that ensures that, upon one spouse's death, the other spouse automatically owns the entire community property, thereby avoiding the time and privacy invasion associated with probate. How does a CP-ROS deed stack up against a revocable living trust in terms of creditor protection, flexibility, and tax concerns? If you are interested in this alternative to a trust, it can be beneficial to speak to an experienced Denton County, TX probate lawyer.  

Texas Community Property Laws

The state of Texas is one of nine community property states, meaning that under Texas Family Code Section 3.003, any property acquired during marriage is presumed to be marital, community property unless proven to be separate. In community property states, the surviving spouse typically inherits at least half of the deceased spouse’s share of community property, with the decedent’s half being controlled by his or her will.

Many assets, despite being community property, must still go through probate unless specific actions, such as adding a right of survivorship or creating a revocable trust, are taken. However, in a community property state, you cannot usually have a separate trust as a married individual, so joint trusts are more common for Texas estate planning.

What is a Texas Community Property with Right of Survivorship Agreement?

A CP-ROS agreement is a written contract between spouses that states each spouse’s community property will automatically pass to the surviving spouse upon the death of the other, thus avoiding probate. Both spouses must sign the agreement, which must include specific language such as "with right of survivorship" or "will become the property of the survivor" to be valid. The agreement applies to all or part of the community property acquired during the marriage, which, under Texas law, is generally all property acquired during the marriage with some narrow exceptions.

What Are the Pros and Cons of a Community Property with Right of Survivorship Agreement?

The benefits of a CP-ROS agreement include:

• It is simple and inexpensive, often a one-page document attached to a deed
• There is no need for an executor or any court intervention upon the death of one spouse.
• The CP-ROS retains community property tax benefits, offering a step-up in basis for both halves of a specified property upon the death of one spouse.
• Smaller estates, in particular, can benefit from a CP-ROS, as can any married couple who wants to avoid probate and complex trust administration.

The potential downsides of a CP-ROS agreement include:

• There is no protection for incapacitation; if one spouse becomes incapacitated, management issues can arise unless a power of attorney exists.   
• The CP-ROS agreement applies only to specifically designated property, not all community assets.
• Once the second spouse dies, probate may still be necessary unless additional estate planning is done.
• A CP-ROS does not shield from nursing home costs, creditors, or lawsuits.

How Does a CP-ROS Differ from a Traditional Revocable Living Trust?

Both a CP-ROS and a revocable living trust can help avoid probate. The CP-ROS offers joint equal control during the lifetime of the spouses, while one or more trustees typically control a revocable living trust. Asset flexibility for a CP-ROS is limited, whereas a revocable living trust offers much broader asset flexibility.

A living trust offers limited creditor protection, while the CP-ROS provides none. Trusts are private, while a CP-ROS becomes public record when accompanied by a recorded deed. A CP-ROS only minimally considers estate tax planning, while a trust offers much more flexibility in this regard.  

Contact a Flower Mound, TX Elder Law Attorney

Whether you are updating your estate plan or exploring probate-avoidance tools for your Texas home, a knowledgeable Denton County, TX estate planning lawyer from Colbert Law Group PLLC can help. Attorney Colbert has extensive experience in estate planning and elder law and previously served as an administrative law judge. Call 972-724-3338 to schedule your initial attorney meeting.