The fact that Texas is one of nine community property states in the US means that all assets belonging to married persons are affected by the concept of community property. In a community property state, most property acquired during marriage belongs to both spouses and is considered community property. Furthermore, community property is either classified as sole management community property or joint management community property. Jointly managed community property is generally titled in both spouses' names, while sole community property is titled in the name of only one spouse and under the exclusive control of that spouse. All property that is not separate property is considered community property in Texas.
Separate property is generally all property acquired by a spouse before marriage or by gift or inheritance during marriage. The Texas Constitution states that "all property, both real and personal, of a spouse owned or claimed before marriage, and that acquired afterward by gift, devise or descent, shall be separate property of that spouse." Tex. Const. art. XVI, § 15. Texas follows the inception of title rule to characterize whether property is community or separate property according to when and how property was first acquired. This means the law looks at the time when a spouse acquired an interest in the property to determine whether the asset is separate or community property. For example, a spouse that enters into a contract to purchase real property on Monday, gets married on Tuesday and closes on the property Wednesday will benefit from that property being classified as separate property throughout the marriage.
Notwithstanding the default rules concerning community and separate property, spouses may agree to convert all or part of any separate property to community property. Tex. Fam. Code § 4.202 (West 2017). Without express agreements between spouses, the distinction between separate and community property is not always clear, and comingling property may result in the loss of its classification as separate. A spouse that asserts property is separate property must provide clear and convincing evidence to establish property as separate property, otherwise, any property other than separate property acquired by either spouse during marriage is presumed to be community property. Tex. Fam. Code §§ 3.002; 3.003 (West 2017). Below are some common examples of community and separate property in Texas.
Community Property Examples
- Salaries and wages earned by either spouse during the marriage
- Real estate, vehicles, and electronics purchased together during the marriage
- Joint bank accounts
Separate Property Examples
- Inherited property from parents or grandparents
- Gifted property from a parent such as a car or real estate
- Gifted property from one spouse to the other such as jewelry for a special occasion
- Personal injury award for pain and suffering
Whether you are a long time Texas resident or coming to Texas for the first time, marital property law in Texas can be complex because of the state's long history as a community property jurisdiction. It is important to consult a competent attorney should you have questions or issues concerning marital property law in Texas.
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