• Robert Tsai

What is separate and community property in Texas?

Updated: Jun 19

In Texas, property is characterized in order to facilitate division when a marriage ends either by death or divorce. Property is characterized either as separate property or community property. This characterization is fixed at the “inception of title,” meaning, when a party first has right of claim to the property. The name on the title does not necessarily determine the property’s character.

Separate property includes property that is owned before marriage, property acquired by gift, inheritance, through a will, property purchased during a marriage using separate property, and recovery for personal injuries other than recovery for loss of earning capacity. All property acquired during a marriage is presumed to be community property. If property was acquired in another state as separate property, but it would have been characterized as community property at the inception of title in Texas, it will be treated as community property upon division in Texas. This property is called “quasi-community property.”

There are several nuances in characterizing marital property. For example, where separate property has become so commingled with community property, to the point the property cannot be separated, the entire property is presumed to be community property. However, if separate property can be traced and clearly identified among community property, it can still be characterized as separate property.

Pre-marital and post-marital agreements can also affect the characterization of property. Typically, income from separate property during a marriage is characterized as community property. However, utilizing these agreements, spouses can recharacterize future earnings of income from a spouse’s separate property as that spouse’s separate property. Prior to marriage, a couple can agree that property that would ordinarily be characterized as community property will be separate property. A post-marital partition or exchange agreement can also recharacterize any part of the couple’s community property as a spouse’s separate property. Furthermore, spouses can agree that existing separate property will be characterized as community property using a post-marital agreement.

Other typical marital property includes bank accounts, life insurance, and retirement benefits. Bank accounts can be mixed as separate and community property but are presumed to contain all community funds. As long as separate property can be traced within this account, it can be characterized as such. The inception of title rule governs the characterization of life insurance. However, even if a life insurance policy is separate property, the community estate may have a claim for reimbursement if premiums were paid for with community property. There are several rules surrounding retirement benefits, but generally, they will be characterized using the inception of title rule to determine the proportion of the benefit that was earned outside of the marriage and during the marriage. So, retirement plans can be mixed separate and community property as well.

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