Better Estate Planning
COMMUNITY AND SEPARATE PROPERTY
Eugene M. McElyea*
Community property is the basic property
ownership law between husband and wife in
This system developed in Texas as a
result of Spanish influence upon our laws.
Presently, ten states, including Texas, retain the
community property system.
The other nine states are Arizona,
California, Hawaii, Idaho, Louisiana, Nevada,
New Mexico, Washington, and Wisconsin.
Alaska enacted a quasi-community
property law recently.
Texas, however, has
developed its own laws based upon this general
Community ownership in a marriage
means that each spouse owns in his or her own
right an equal, undivided portion of all marital
Separate property is property acquired
during the marriage by gift, inheritance, or
under a will or owned by a spouse before
Recoveries for personal injuries may
also be maintained as separate property.
While this definition may seem simple, in
practice it has proven very difficult at times to
The problem of determining the
exact nature of property arises generally when
the marriage has ended by death or is nearing an
end by divorce.
As long as husband and wife
live together in harmony and plan properly in
contemplating death, community property
ownership can be a very satisfactory
When the marriage breaks down
or one spouse dies without a will, problems of
proving the property status can be complex and
Since the character of property as separate
or community is fixed at the time it is acquired
by one or both spouses, it may difficult at a
distant future date to clearly establish facts that
existed at acquisition time.
problems of distinguishing the difference
between separate and community property, the
law presumes all marital property to be
community unless evidence is produced clearly
demonstrating its separate character.
Without maintenance of adequate financial
records segregating separate assets, it is easy for
them to become mingled with community funds and
thus lose their separate identity.
While the courts
try to trace an asset to its source, it is not certain that
this can be accomplished.
Recent changes in Texas law have modified the
husband's traditional role as "manager" of
In an effort to extend more
rights to married women, the law has declared that
all community property is now subject to joint
management by the spouses except that each spouse,
husband and wife has sole management of his
personal earnings, revenue from his separate
property, recoveries for individual personal injuries
and the increase of property over which he has sole
It is also interesting to note that Texas regards