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Navigating the Distinction: Community Property vs. Separate Property in Texas Estate Planning

Person holding clipboard of itemized list of community vs separate property with house in background

Why The Community Property and Separate Property Distinction Matters in Texas Estate Planning

When it comes to estate planning in Texas, understanding the distinction between community property and separate property is essential. Texas is one of only nine states in the U.S. that recognize the concept of community property and is therefore considered a community property state. This significantly impacts the way property is owned and controlled during marriage and its distribution upon death or divorce. Let's delve into the intricacies of Texas community property and separate property and explore how this distinction affects estate planning, including wills, living trusts, intestate estates, powers of attorney, and more.

What is Community Property?

Under Texas law, community property, or marital property, comprises all assets acquired by either spouse during the marriage and any income earned by either spouse during the marriage. This property is presumed to be equally owned by both spouses, with each spouse having an "undivided one-half interest" in all community property. The term "undivided" means that both spouses wholly own the property together, and, except in specific circumstances, neither spouse can independently give away or sell their half without the consent of the other.

Crucially, the source of funds used to acquire the property or the name on the title does not affect its classification as community property. It is presumptively community property if it was obtained between the date of marriage and the date of divorce. Examples of community property include:

  • Income earned by either spouse during the marriage, including wages, salaries, tips, and overtime.

  • Real estate purchased during the marriage, such as a house or investment property.

  • All vehicles acquired during the marriage, regardless of the name on the title.

  • Individual contributions to retirement accounts made during the marriage, including pensions and 401(k) plans.

  • Payments received by either spouse for lost wages, such as unemployment compensation.

What is Separate Property?

Separate property in Texas falls into two categories: property owned by either spouse before marriage and property acquired by a spouse during the marriage (1) through inheritance, (2) as a gift to that spouse alone, or (3) received as compensation for personal injuries. Separate property is not subject to the same shared ownership principles as community property. Instead, it remains the sole property of one spouse.

Examples of separate property include:

  • A home purchased by one spouse before the marriage.

  • A car gifted to one spouse by their parents during the marriage.

  • Jewelry given to one spouse by the other during the marriage.

  • Retirement contributions made to a spouse's retirement account before the marriage.

  • Real estate received through inheritance during the marriage.

  • Personal injury settlements received by one spouse, such as reimbursements for medical bills resulting from an accident.

Because any property acquired during the marriage is presumed to be community property, a spouse claiming any property as their separate property must provide clear and convincing evidence to support their claim.

How This Affects Texas Estate Planning

In Texas, as in other states, every marriage that does not end through a judicial decree (divorce, annulment, etc.) is terminated by death. When the first spouse dies, the community estate ends, and all community property, as well as the separate property of the deceased spouse, must be dealt with. Because different rules apply to community and separate property, an important and complicated part of this process is determining which category all of the deceased person’s property belongs to.

Here's how that affects various aspects of estate planning:

Last Wills and Testaments

Because each spouse only owns one-half of any community property, they can only control what happens to their own half when they die. The surviving spouse still owns their one-half of that property. This is true even if the deceased spouse’s will attempts to leave that property to someone else. The surviving spouse retains ownership of their half of the community property, regardless of the deceased spouse's intentions.

For instance, consider a married couple who purchased a beach house as community property during their marriage. Upon the death of one spouse, their will may attempt to bequeath the entire beach house to a child from a previous marriage. However, since the deceased spouse only owns one-half of the community property, they can only bequeath their share. Consequently, the surviving spouse and the deceased spouse's child become joint owners of the property.

In contrast, separate property allows for more flexibility. If the beach house had been owned solely by the deceased spouse before the marriage, they could leave full ownership of it to their child through their will, with no obligation to leave any portion to their surviving spouse.

Even if you intend to leave all your property to your spouse upon your death, understanding the distinction is crucial. Contingencies and what-if scenarios, such as the death of your spouse before you, should always be considered in estate planning. This is particularly critical for those in blended families or with inheritors other than their spouse, as it ensures your intentions are legally enforceable.

Estates with No Plan (Intestate Estates)

The classification of property as community or separate is particularly significant when a married individual dies without a will or estate plan in place (called “intestate”). In such cases, the rules as to who inherits the deceased spouse's property hinge on the distinction between community and separate property.

When it comes to the deceased spouse’s separate property, who inherits depends on who survives the deceased. If the deceased spouse had no children or all children they had were also the children of their spouse (meaning they have no children from a different relationship), the surviving spouse will inherit one-half of their separate real property (i.e., real estate) and all of their separate personal property (everything that’s not real estate, such as personal possession, cash, vehicles, etc.) The remaining one-half of the deceased’s real property will pass to their next of kin as determined by Texas law, which may be parents, siblings, uncles, aunts, or even more distant relations.

But, if the deceased spouse did have children from a different relationship, the surviving spouse will get much less. In that case, the surviving spouse gets only one-third of the deceased’s separate personal property and only a lifetime estate in one-third of their separate real property. The children of the deceased will get all other separate property. Obviously, that’s a significantly smaller inheritance for the surviving spouse.

What about the community property of the deceased spouse? The surviving spouse will always continue to own (not inherit) an undivided one-half interest in the community assets. But the answer as to the deceased’s share of the community property depends, again, on whether the deceased had children from a different relationship.

If the deceased was married and had no children other than with their spouse, the surviving spouse will inherit the deceased spouse’s one-half of the community property and then fully own all the former community property. But if there are any descendants of the deceased spouse who are not also descendants of the surviving spouse, the rules change again. In that case, the deceased spouse’s undivided one-half interest in the community assets would be split evenly among their children or grandchildren. None of their share would go to the surviving spouse.

As illustrated, the classification of property as community or separate plays a substantial role in determining inheritances in the absence of a will or estate plan. When there is uncertainty about whether an asset should be categorized as community or separate property, the probate process can quickly become complex and contentious.

Debts, Reimbursement Claims, Homestead, and More

The distinction between community and separate property further impacts various aspects of estate planning, including:


Upon a person's death, their debts do not vanish. Part of effective estate planning involves assessing and understanding the debts and identifying which assets in an estate may be liable for these debts. When a deceased person passes on their assets via a will or the default intestate rules, it passes subject to their debts. That means a deceased spouse’s separate property and their share of any community property are generally liable for payment of their debts - including medical bills. Significant debts could potentially deplete both the deceased's separate property and up to half of the community estate. The surviving spouse would keep his or her own separate property and whatever is left of the other half of the community estate after the deceased spouse's debts are paid.

Reimbursement Claims

Reimbursement claims can arise in both divorce proceedings and estate matters. They can apply when community funds are used to benefit one spouse's separate property or when separate funds are utilized to enhance community property. Another common scenario is when one spouse owns an insurance policy on their life, with community funds used to pay the premiums, but the policy's proceeds are payable to a third party, such as a child or relative.

When a married person dies, reimbursement claims must always be considered. If the deceased spouse's estate holds a reimbursement claim against the community estate, the legal interest in that claim passes to their heirs. This situation can present challenges, as it may require pursuing the reimbursement claim against the surviving spouse and the community property, potentially leading to conflicts of interest among family members and the appointed personal representative.


In Texas, the concept of a "homestead" pertains to a residential structure owned by either spouse, along with up to 20 acres of land if used for residential purposes. Irrespective of a person's will or intestate succession rules, the surviving spouse is granted the exclusive right to occupy the marital homestead for the duration of their life. This right applies regardless of whether the homestead is classified as community property or the deceased spouse's separate property.

This means that if a married individual owns a separate property house but used it as their residence with their spouse, they cannot prevent their surviving spouse from residing there after their death. If the deceased spouse leaves the house to someone else, they can’t take possession until after the surviving spouse also passes. During the time they are living in the house, the surviving spouse is responsible for utilities, property taxes, and routine maintenance and repairs. However, the person(s) responsible for the payment of the mortgage and insurance premiums will depend on whether the homestead was community or separate property and whether the deceased spouse left a will.


Understanding the distinction between community property and separate property is critical in crafting an effective estate plan in Texas. While it may appear complex and confusing, understanding this differentiation is essential for ensuring that your assets are distributed according to your wishes and in compliance with Texas state law.

An experienced estate planning attorney can help you navigate these concepts, apply them to your specific circumstances, and develop a tailored estate plan that aligns with your objectives. Whether you are looking to protect your family, secure your assets, or ensure the seamless transfer of your property, consulting an attorney is a smart and prudent step in the estate planning process.

For experienced guidance and assistance with your estate planning, contact The Caleb Patterson Law Firm today to schedule your free consultation. Our knowledgeable team is committed to helping you secure your future and protect your loved ones through strategic and comprehensive estate planning solutions.



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