Community & Seperate Property Laws
-- Posted: July 31,2007 | Keri Thaler
Special Note: the following information was provided by Mrs. Thaler, but written by Title Resources Guaranty Company and reprinted with permission.
Definitions
A. Community property consists of the property, other than seperate property, acquired by either spouse during marraige.
B. Seperate Property consists of:
- The property owned or claimed by the spouse before the marraige
- The property acquired by the spouse during marraige by gift, devise or descent; and
- The recovery for personal injuries sustained by the spouse during marraige, except any recovery for loss of earning capacity during marraige.
Presumption
The Family Code of Texas provides that property possessed by either spouse during or on dissolution of marraige is presumed to be community property.
Recordation of Seperate Property
The Family Code of Texas further provides that a subscribed and acknowledged schedule of a spouse's seperate property may be recorded in the deed records of the county in which the parties (or one of them) reside and in the county or counties where the real property is located. As to the real property, a schedule of a spouse's seperate property is not constructive notice to a good faith purchaser for value or a creditor without actual notice unless the instrument is acknowledged and recorded in the deed records of the county in which the real property is located.
Management Control & Disposition of Marital Property
The Family Code of Texas also provides if:
- A spouse is unable to manage, control or dispose of the community property subject to his or her sole or joint management, control and disposition;
- A spouse diappears and his or her location remains unknown to the other spouse, except under circumstances such as missing in action while in public service;
- A spouse permanently abandons the other; or
- The spouses are permanently separated, then not less than 60 days thereafter the capable spouse, or either spouse in the case of permanent seperation, may file a sworn petition stating the facts that make it desirable for the petitioning spouse to manage, control and dispose of community property (described or defined in the petition) in a district court of the county in which the petitioner resided at the time the incapacity or seperation began or the abandonment or disappearance occurred for an order that the described property be subject to the management and control of such spouse. On entry of an order, the court may impose restrictions and conditions thereon. Such an order is not constructive notice to a good-faith purchaser for value or a creditor without actual notice unless the order is recorded in the deed records of the county in which the real property lies.
Management & Control Where One Spouse is Incompetent
Where one spouse is judicially declared incompetent, the other spouse acquires full power to manage, control and dispose of the entire community estate. A guardianship is not necessary.
Succession to Title to Community Property Where a Death Occurs
The Texas Probate Code provides:
On the intestate death of one of the spouses to a marraige, the community property estate of the deceased spouse passes to the surviving spouse if:
- No child or other descendant of the deceased spouse survives the deceased spouse; or
- All surviving children and descendants of the deceased spouse are also children or descendants of the suviving spouse
On the intestate death of one of the spouses to a marraige, if a child or other descendant of the deceased spouse survives the deceased spouse, and the child or descendant is not a child or descendant of the surviving spouse, one-half of the community estate is retained by the surviving spouse and the other one-half passes to the children or descendants of the deceased spouse. The descendants shall inherit only such portion of said property to which they would be entitled under Section 43 of the Probate Code. In every case, the community estate passes charged with the debts against it.
Real property owned by parties not resident in the state of Texas is governed by Texas law and the presumptions of community property still apply.
Keri Thaler, United Title of Texas
Keri is the Business Development Representative at United Title of Texas, a growing title company in the Katy / Cinco Ranch area. Along with the many tasks that come along with opening a new office, she is a member of the Women's Council of Realtors and the Houston Association of Realtors. Keri is an active member in her church at Epiphany Catholic Church, and also enjoys any spare time she has with her family and friends!
You can contact Keri at:
281.395.4151
kthaler@uttco.com
http://www.uttco.com
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