Difference Between Community Property and Separate Property

What is separate property?

Separate property is property acquired before marriage.  It is also property acquired during marriage by gift, devise, or descent; and recovery for personal injuries by a spouse during marriage except for recovery for loss of earning capacity during marriage. Property received by devise or descent is property received from the estate of a person who has died.

For example, if a relative passes away and leaves you money or property it is separate property regardless of your marital status.

What is community property?

Community property is property acquired by either spouse during marriage with two exceptions.  First, property received by gift, devise or descent is separate property.  Property received by devise or descent is property received from the estate of a person who has died.  Second, during marriage any recovery for personal injuries by a spouse is separate property except for recovery for loss of earning capacity during marriage.

For example,  if you and your spouse buy a house after you are married it is community property.  However if one spouse purchased the home before the marriage and then the other spouse moved in after the marriage the house is the separate property of the purchasing spouse.

What is the community property presumption?

There is a presumption that all property owned by a married person is community property.  This presumption can be challenged by clear and convincing evidence.

For example, you buy a vehicle while you are married but only your name shows on the title and loan.  There is still a presumption it is community property owned by both spouses even if titled in only one spouses name.

What about property acquired in another state?

It is important to note in Texas the answer is different in a divorce verses a probate proceeding.  In a divorce proceeding the property will be characterized as “quasi community property” and treated the same as the other community property.  In a probate proceeding the property will be characterized according to the laws of the state where it is located.