Texas law, for title research

Is Texas a community property state? Yes: the Family Code rules, and what they mean for a deed

Every rule below is quoted from the Texas Family Code or another official source, linked and checked on the date shown. General information, not legal advice.

What counts as community property in Texas?

Property either spouse acquires during the marriage, unless it is separate property. That is the definition in Section 3.002 of the Family Code, and it works by subtraction: Section 3.001 lists what is separate, and what else is acquired during the marriage is community, unless the spouses changed that by agreement.

Separate property is a short list. It is what a spouse owned or claimed before the marriage, what a spouse received during the marriage by gift, devise or descent, and a recovery for personal injuries during the marriage, except any recovery for loss of earning capacity during the marriage. Absent an agreement, a house inherited from a parent during the marriage is separate, and a house bought during the marriage with wages falls under Section 3.002 as community property, even when the deed names only one spouse.

Agreements can move property across that line. Section 4.102 lets spouses partition or exchange community property, and what is transferred to a spouse becomes that spouse's separate property. Section 4.202 lets them convert separate property to community property, in a signed writing that identifies the property and says so, and Section 4.203(b) says a mere transfer to the other spouse's name or to both names is not sufficient. Section 4.003 lets a premarital agreement address rights in property.

Mixed cases have rules too. Where the community estate and a spouse's separate estate both have an ownership interest in property, Section 3.006 determines their interests by the rule of inception of title. Section 3.406 lets a court impose an equitable lien on property of a benefited estate to secure a reimbursement claim, on dissolution or on application after a death.

Who has to prove a property is separate?

The section sets the degree of proof without naming a party. Section 3.003 presumes that property possessed by either spouse during or on dissolution of the marriage is community property, and says the degree of proof necessary to establish that property is separate is clear and convincing evidence. Our reading, for a Texas attorney to confirm, is that whoever asserts separate status has to meet that standard.

Several instruments can go on the land records. Under Section 3.004, a subscribed and acknowledged schedule of a spouse's separate property may be recorded in the deed records. A schedule of separate real property is not constructive notice to a good faith buyer or creditor without actual notice unless it is acknowledged and recorded in the deed records of the county where the land is located. A partition or exchange agreement under Section 4.106(b), and a conversion to community property under Section 4.206, may also be recorded, and each is constructive notice to a good faith purchaser for value or a creditor without actual notice only if acknowledged and recorded in the county where the land is located.

Does the name on the deed decide who owns a Texas house?

Not by itself. The deed says who took title; the marital property rules decide what kind of property it became. A deed to one spouse during the marriage can still convey community property, because the presumption in Section 3.003 turns on possession during the marriage, not on the grantee named in the deed.

The name does matter for who can deal with the property. Section 3.104 presumes that property held in one spouse's name, as shown by a muniment or other evidence of ownership, is under that spouse's sole management, and it lets a third person rely on that spouse's authority if the third person is not a party to a fraud and has no actual or constructive notice of a lack of authority. Section 3.102 sets the underlying management rule: each spouse solely manages the community property that spouse would have owned if single, and other community property is managed jointly unless the spouses provide otherwise by power of attorney in writing or other agreement. Section 3.101 gives each spouse sole management of that spouse's separate property, apart from the homestead rule below.

Do both spouses have to sign to sell a Texas home?

For the homestead, generally yes. Section 5.001 says that whether the homestead is the separate property of either spouse or community property, neither spouse may sell, convey or encumber it without the joinder of the other spouse, except as Chapter 5 or other rules of law provide. Chapter 5 states the exceptions. Sections 5.002 and 5.003 let the owner of a separate homestead, or the competent spouse on a community homestead, act without joinder after the other spouse has been judicially declared incapacitated. Sections 5.101 to 5.106 separately provide for a sworn petition, where the other spouse has disappeared, has permanently abandoned the homestead as those sections state, or has been reported a prisoner of war or missing on public service.

The Texas Constitution adds its own rules. Article XVI, Section 50(b) says an owner or claimant may not sell or abandon the homestead without the consent of each owner and the spouse of each owner. Subsection (c) says no mortgage, trust deed or other lien on the homestead is valid unless it secures a debt the section describes, even with both spouses signing. Subsection (d) lets a purchaser or lender for value without actual knowledge conclusively rely on an affidavit that designates other property as the homestead and says this property is not.

A title search tests this on a married seller. A homestead deed or deed of trust signed by one spouse alone, with no exception showing, is flagged for a Texas attorney, even when the property was that spouse's separate property.

How is community property divided in a Texas divorce?

Section 7.001 directs the court to divide the estate of the parties in a manner that the court deems just and right, having due regard for the rights of each party and any children of the marriage. The section does not state an equal split.

For the land records, the question is what was filed. We searched Chapters 7 and 9 of the Family Code and found no section requiring a decree to be recorded in the deed records, and Section 7.006(b) says an agreement incorporated by reference in the decree is not required to be filed with the court or its clerk. A report on a property owned by a divorced seller therefore looks for the decree and any deed signed to carry it out, and says which it found. Section 9.201 lets either former spouse sue to divide property not divided or awarded in the decree, so a decree that leaves a property out does not end the question.

What happens to community property when a Texas spouse dies?

Three things can decide it. If there is a will, Estates Code Section 101.001 vests what it devises in the devisees and what it does not devise in the heirs at law, subject to debts. Spouses may also agree under Section 112.051 that community property becomes the survivor's at a death, in a writing signed by both, and Section 112.152(a) says those transfers take effect by reason of the agreement and are not testamentary transfers.

Without a will, Section 201.003 applies. The deceased spouse's community estate passes to the surviving spouse if no child or other descendant of the deceased survives, or if every surviving child and descendant is also a child or descendant of the surviving spouse.

If the deceased leaves a child or other descendant who is not also the surviving spouse's, the deceased spouse's undivided one-half interest in the community estate passes to the deceased spouse's children or other descendants. In every case the community estate passes charged with the debts against it. For a title search that means a family with a descendant who is not also the surviving spouse's can leave a house owned in part by the surviving spouse and in part by the deceased spouse's children or other descendants, including children the couple share, and the record has to show which. If the house is the homestead, Section 102.005 and Article XVI, Section 52 of the Texas Constitution bar partition among the heirs during the surviving spouse's lifetime for as long as the spouse elects to use or occupy it as a homestead.

What a title search checks on a married owner

A title check before buying reads the chain of title behind each vesting: what the instruments say about marital status when title was taken, who signed each homestead deed and deed of trust, whether a separate property schedule, a Chapter 4 agreement, a survivorship agreement or a divorce decree is in the deed records, and, after a death, whether an heirship affidavit, a will or a probate order shows who holds the deceased spouse's half. Whether a spouse who is not on the deed holds an interest is a legal conclusion for a Texas attorney; the report shows the record that question turns on.

The Texas marital property rules on this page, with their sources

Sources: Texas State Law Library, Community Property; Texas Family Code, Chapter 3; Texas Family Code, Chapter 5; Texas Family Code, Chapter 7; Texas Estates Code, Chapter 201; Texas Family Code, Chapter 4; Texas Constitution, Article XVI; Texas Estates Code, Chapter 101; Texas Estates Code, Chapter 112; Texas Estates Code, Chapter 102; Texas Family Code, Chapter 9. Each row links the section it summarizes.

Questions people ask

More on how Texas property law shapes a title search: title research in Texas.