Community Property

Texas is a community property state, which generally means that most property acquired during the marriage belongs to both spouses and that at the time of death of a spouse, community property will be divided on an equal (50%-50%) basis. A critical question surrounds what is known as “characterization”.  Is property “separate” or “community”?  Community property has been defined as “that property which is acquired by the works, efforts, or labor of the spouses…”  Separate property includes property which a spouse owned prior to marriage or received during marriage by gift or inheritance.

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Administration Of Community Property In Probate

It should be noted that all community property is subject to the administration of a Decedent’s estate.  The death of one spouse dissolves the community and necessitates a division of the community estate.  Accordingly, all community property, not just the deceased spouse’s ½ share, is subject to administration on the death of the first spouse.  The executor or administrator of the estate will take control of the Deceased spouse’s separate property assets and all community assets.  After paying appropriate obligations, the remaining community property is partitioned between the surviving spouse and the Deceased spouse’s beneficiaries through his Will or legal heirs pursuant to the Texas laws of intestacy which are applicable when a person dies without a will.

At the time of death, there is a legal presumption that all property owned by a spouse is community property.  This presumption can be overcome by clear and convincing evidence that the property is separate instead of community property.  Maintaining accurate records is critical to prove whether certain property was the separate property of a deceased spouse should a dispute arise over whether property should be considered as separate or community. An additional dispute can arise over whether a property which was initially separate property can unintentionally become community property.

Forcefully – Strategically – Efficiently Resolving Probate, Trust, and Estate Disputes

Disputes and commingling issues can arise when separate property is not properly protected.  Email us to arrange for a consultation to learn how Texas community property law can impact your property interests.


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