Key Takeaways
- Texas is a community property state—property acquired during marriage is presumed to be owned equally by both spouses
- Separate property includes: property owned before marriage, gifts, inheritance, and personal injury recoveries
- Both spouses must consent to sell or encumber community real property
- Income from separate property during marriage becomes community property
- A spouse can manage and control their own separate property without the other spouse's consent
Texas Community Property
Texas is one of nine community property states in the United States. This affects how property is owned and conveyed during marriage.
Community Property Presumption
In Texas, property acquired during marriage is presumed to be community property:
| Presumption | Application |
|---|---|
| All property acquired during marriage | Community |
| Income earned during marriage | Community |
| Property purchased with community funds | Community |
| Property titled in one spouse's name | Still presumed community |
Burden of Proof
To claim property is separate, the claiming spouse must prove it by clear and convincing evidence.
Community vs. Separate Property
| Community Property | Separate Property |
|---|---|
| Property acquired during marriage | Property owned before marriage |
| Income from employment | Gifts to one spouse |
| Business profits | Inheritance |
| Investment returns | Personal injury recovery (except lost wages) |
| Profits from separate property | Property acquired by partition agreement |
Management of Community Property
Sole Management Community Property
Property that one spouse alone can manage:
| Type | Managing Spouse |
|---|---|
| Personal earnings | Earning spouse |
| Revenue from sole management property | Original managing spouse |
| Personal injury recovery | Injured spouse |
Joint Management Community Property
Property that both spouses must agree to manage:
| Type | Requirement |
|---|---|
| Real property | Both must sign to sell or encumber |
| Mixed or commingled funds | Both must consent |
| Property titled jointly | Both must consent |
Real Estate Implications
Selling Community Real Property
To sell or encumber community real property:
| Requirement | Effect |
|---|---|
| Both spouses must sign | Deed or mortgage |
| Failure to get consent | Transaction voidable |
| Title company requirement | Will require both signatures |
Separate Property Real Estate
A spouse can convey their separate real property without the other spouse's consent, UNLESS:
- It is the homestead (then both must sign)
- It has been converted to community property
Proving Separate Property
To prove real property is separate:
| Evidence | Example |
|---|---|
| Deed dated before marriage | Premarital ownership |
| Gift deed to one spouse | "To Jane Doe, as her separate property" |
| Inheritance documents | Will, probate records |
| Partition agreement | Signed by both spouses |
Death and Community Property
When one spouse dies:
| Community Property | What Happens |
|---|---|
| Deceased spouse's half | Passes by will or intestacy |
| Surviving spouse's half | Remains with survivor |
Right of Survivorship
Community property does NOT automatically pass to surviving spouse. To achieve survivorship:
- Create community property with right of survivorship
- Execute a survivorship agreement
- Hold as joint tenants with right of survivorship
Premarital and Marital Agreements
Spouses can change the character of property through agreements:
| Agreement | Purpose |
|---|---|
| Premarital (prenuptial) | Before marriage, defines separate property |
| Partition agreement | During marriage, converts community to separate |
| Exchange agreement | Exchanges one community interest for another |
Which of the following is considered separate property in Texas?
To sell community real property in Texas: