Separate and Community Property

To evaluate different estate planning choices, it is helpful to understand the distinctions between “separate property” and “community property.”

According to the Texas Family Code, separate property consists of “the property owned or claimed by the spouse before marriage; the property acquired by the spouse during marriage by gift, devise, or descent; and the recovery for personal injuries sustained by the spouse during marriage, except any recovery for loss of earning capacity during marriage.”

On the other hand, community property “consists of the property, other than separate property, acquired by either spouse during marriage.”  Further, without “clear and convincing evidence” (such as proof of pre-nuptial agreements, marital agreements, title documents, property records, or gifts), the law presumes that all property acquired during marriage is community, and not separate, property.

It is worthwhile to familiarize yourself with these concepts.  Depending on the timing of your property purchases, the timing your marriage, and whether or not you had children prior to your current marriage, your spouse and your children may have certain rights related to your property.  (For a more detailed discussion of those rights, please read our article entitled “Spouses, Children, and Blended Families.”)

Consequently, it is of utmost importance to understand these legal concepts because such an understanding will help you make informed decisions about your estate plan.