Gift deeds in Texas

What are the requirements for deeds in Texas

To be a valid deed, the document must be (1) in writing, (2) signed, (3) describe the property, and (4) delivered. TPC §5.021.

What are the requirements for gift deeds in Texas

To be valid, gift deeds in Texas further require the document set forth (1) the intent of the grantor, (2) the delivery of the property to the grantee, and (3) the gift to be accepted by the grantee. The one claiming the gift bears the burden to establish each of the elements. All dominion and control over the property must be released by the owner. Delivery is required, but it need not be actual or immediate. If the grantor intended for the title to pass immediately upon execution and acknowledgement, there is a valid constructive delivery.

Recent case dealing with gift deeds in Texas

In 2016, the San Antonio court of appeals was asked to decide if a document was a gift deed. The document was titled “March 11, 2005 Will” of two people who owned the property in question and was signed by them. The document said “we agree that the house be evenly owned by” the grandchildren. The court ruled that the key issue turns on the intent of the donor when the document was executed. A gift is a voluntary transfer of property to another made gratuitously and without consideration. Establishing donative intent requires “evidence that the donor intended an immediate and unconditional divestiture of his or her ownership interests and an immediate and unconditional vesting of such interests in the donee.” Until the donor has absolutely and irrevocably divested herself of the title, dominion, and control of the subject of the gift, she has the power to revoke the gift. Here, the conveyance in the “March 11, 2005 Will” lacks present donative intent. The document provides “[w]e agree that the house be evenly owned by (grandchildren)” and the document’s title as a will clearly implies the donor’s intent to transfer ownership of the property to the (grandchildren) upon the testators’ deaths. The transfer did not provide for an immediate and unconditional divestment of the donors’ interests. By its very nature, the “March 11, 2005 Will” does not “absolutely and irrevocably divest” the owners of “title, dominion, and control of” the property. The court reversed the trial court who had ruled that the document was a gift deed. 04-14-00609-CV.

Another problem with gift deeds in Texas was highlighted by the 2018 case of Enschke v. Claussen, No. 04-17-00132-CV, (Tex. App. – San Antonio Feb. 7, 2018) (mem. op.).  A gift deed is the separate property of the person to whom the deed was given. The deed will usually recite the consideration as “love and affection.” A non gift deed will usually recite the consideration as “$10 and other good and valuable consideration” and would be classified as community property.” In Enschke, the deed was from family members to other family members but it recited the consideration as “for and in consideration of the sum of Ten and no/100 ($10.00) Dollars.” A party to the suit who was the beneficiary of the separate property of one of the grantees claimed that the deeds were actually gift deeds instead of deeds being purchased. She even had one of the family members who was the grantor testify that they were gift deeds not purchased deeds. If they were gift deeds, she would inherit the land. If they were purchased deeds, she would not inherit the land. The court ruled that because the deeds were no ambiguous and recited that they were sold for $10, no testimony would be allowed which would contradict what the deed said. So, they were not gift deeds.

What you should know

Gift deeds in Texas are valid; however, there are strict requirements for gift deeds in Texas that have to be met. If you have a document that might be a gift deed or if someone is claiming they have a gift deed to property that should be yours, you should contact an attorney as soon as possible.