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How Texas Community Property Laws Impact the Probate Process

Community property laws are a factor in many estates that require a probate proceeding. Community property, also known as marital community property, is similar to joint tenancy.

Under joint tenancy, both spouses own all property equally, and upon the death of one spouse, his or her interest in the property is automatically transferred to the surviving spouse.

What is Community Property in Texas?

In order to fully understand how community property laws impact the probate process, it is first necessary to understand what community property is.

Community property is defined as any asset acquired by either spouse during the course of the marriage, with a few exceptions.

Community property is a type of property ownership that is recognized in Texas and nine other states. Under community property law, all property acquired by either spouse during the marriage is considered to be owned equally by both spouses, regardless of which spouse’s name is on the title.

There are a few exceptions to the community property rule. For example, property that is acquired by gift or inheritance is considered to be separate property, as is property that is acquired before the marriage.

What are the Exceptions?

The most notable exception is gifts and Inheritances, which are generally considered to be separate property. Assets considered community property are automatically inherited by the surviving spouse. One exception to the community property rule is that money or property inherited by one spouse during a marriage is always considered separate property.

Married couples can treat their inheritance as part of community property or keep it separate. If one spouse inherited part of a large piece of property or money while they were married, the entire inheritance is separate.

Community Property & Probate

Community property laws can have a significant impact on the probate process, particularly when it comes to distributing assets to heirs.

In Texas, the treatment of community property differs when a spouse dies with a will compared to when they die without a will. Let’s explore both scenarios

  1. Spouse Dies with a Will – When a spouse dies with a valid will in Texas, they have the ability to dispose of their separate property and their share of the community property through the terms of their will. However, the surviving spouse retains their ownership interest in their share of the community property.
  1. Spouse Dies without a Will (Intestate) – When a spouse dies without a valid will, Texas intestate succession laws come into play to determine the distribution of assets, including community property. The surviving spouse will generally inherit the deceased spouse’s share of the community property. However, the specific distribution will depend on whether the deceased spouse has any surviving children or other heirs.
    • Surviving Spouse and No Children: If the deceased spouse has no surviving children or descendants, the surviving spouse will inherit the entire community estate.
    • Surviving Spouse and Children: If the deceased spouse has children or descendants, the surviving spouse will generally inherit one-half of the community property, and the other half will pass to the children or descendants. The surviving spouse retains their one-half share of the community property.

It is worth noting that certain exceptions and complexities may arise, such as when there are children born to the decedent outside of the marriage.

What if Property Is Titled in One Spouse’s Name

In many cases, community property is titled in either only the husband’s name or only the wife’s name. This does not mean that the property is considered to be that spouse’s separate property. Community property is still considered to be owned equally by both spouses, even if it is titled in one spouse’s name.

When a spouse dies, a probate proceeding will be required to transfer title of the deceased spouse’s interest in community property to the surviving spouse.

This can create additional costs of administration and delay distribution to heirs. In order to fully understand how community property laws impact the probate process, it is first necessary to understand what community property is.

Community Property Laws Vary by State

Community property laws vary from state to state. It’s important to consult with an attorney in your jurisdiction to determine how these laws apply in your specific case.

In states like California and Texas, community property rules are governed by statute. This provides more clarity as to how these laws apply.

In other states like Arizona and New Mexico, community property rules are based on common law principles, so there may be more flexibility in how these rules are applied.

Regardless of which state you reside in, it is always best to consult with an experienced attorney who can help you navigate the complexities of the probate process and ensure that your interests are protected every step of the way.

Hire an Experienced Houston Probate Attorney

Do you need help with a probate matter in the Houston metro area or the surrounding Texas communities? We are experienced probate lawyers who represent clients with sensitive probate matters. If so, please give us a call us at (281) 219-9090.

Our Houston Probate Attorneys provide a full range of probate services to our clients, including helping with community property laws. Affordable rates, fixed fees, and payment plans are available. We provide step-by-step instructions, guidance, checklists, and more for completing the probate process. We have years of combined experience we can use to support and guide you with probate and estate matters. Call us today for a FREE attorney consultation.


The content of this website is for informational purposes only and should not be construed as legal advice. The information presented may not apply to your situation and should not be acted upon without consulting a qualified probate attorney. We encourage you to seek the advice of a competent attorney with any legal questions you may have.

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