The Characterization of Property in Texas

by Rania Combs on September 26, 2011

I have written before that in the case of intestacy, the characterization of property as separate or community dictates how and to whom it is distributed.  It also affects which property you can dispose of in a Will at your death.

But how does one distinguish between which property is community and separate? The following is an explanation of how property is characterized in Texas.

Characterization of Property

In Texas, all property is classified as community or separate property depending on when and how it was acquired.

Property acquired before a marriage is classified as separate property, while property acquired during a marriage is presumed to be community property, except if acquired by gift, devise or descent, or you agree otherwise (I’ll explain in a future post).

Property retains the classification as separate or community regardless of whether it is converted to cash or back again. So for example, if you sell a home that was your separate property, the proceeds from that home will be separate even though you sold the property while you were married. Or if you receive an inheritance while you are married, the inheritance would be separate property.

However, if you want to retain the separate nature of that property, it’s important that you don’t commingle the property with community property. Otherwise it may be difficult to “trace” the property in a way that proves that it is separate property.

Distinguishing Between Community Property and Separate Property

The following property is classified as community property:

  • Income either spouse earns during the marriage
  • Property purchased with income earned during the marriage
  • Dividends, interest, and capital gain earned on community property
  • Dividends and interest earned on either spouse’s separate property during the marriage

Separate property includes any of the following:

  • Income earned by either spouse before the marriage
  • Capital gain on separate property, such as appreciated stock
  • Any property acquired by gift or inheritance
  • Personal injury damages for an physical injury sustained, even while married (except for lost wages which are community property)

So for example, if you owned a condominium before you were married, and rented the condominium out after you were married, the rental income would be community property. However, if you were to sell the condominium after you were married, the proceeds of the sale would be separate, assuming you don’t commingle the proceeds with community property in a way that makes them untraceable.

Can Property Be Separate and Community at the Same Time?

It’s possible for property to be characterized as both separate and community. For example, suppose you purchase a home during your marriage for $200,000 and use the proceeds from the sale of separate property to put down a down payment of $50,000, 25 percent of your home would be your separate property. However, if you make mortgage payments out of income earned during your marriage, a portion of the home would be owned by the community.

The distinction between separate and community property can get a bit confusing at times but is very important in determining how property is distributed at death.

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{ 6 comments… read them below or add one }

KK May 13, 2012 at 8:50 am

If I purchase a home entirely with money from an inheritance, will it then become community property if my husband were to help pay for taxes, electric bills, etc?


Rania Combs May 14, 2012 at 10:16 am

The character of the property should not change, but depending on the types of expenditures made, a spouse may be entitled to reimbursement for contributions that enhance the value of the separate estate.


Jamie June 27, 2012 at 4:41 pm

If I fund the downpayment and closing costs of a home prior to marriage, but once married (1 month later) the payments are made through a joint checking account, does that make the house separate or community property or a mixture of both?


Rania Combs June 28, 2012 at 10:11 pm

Whether property is characterized as separate or community is fixed at the “inception of title.” If acquired before marriage, the property would be separate. The fact that community funds are spent to improve or payoff separate property may give rise to a claim for reimbursement, but doesn’t change the classification of the property.


Kandie April 15, 2014 at 11:48 am

If the home was purchased prior to being married, but then was refinanced during the marriage, would that make it community property at that time even though I am not on the paperwork for refinance?


Rania Combs June 24, 2014 at 3:49 pm

Texas follows the “inception of title” rule. If the property was purchased before marriage, then it would be characterized as separate property.


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