Texas is a “community property” state. With few exceptions, in the state of Texas, any property acquired during the marriage and all income earned during the marriage is presumptively “community property”. Each spouse owns a one-half (1/2) undivided share of the community property. Thus, it follows under Texas law that each spouse has a right to dispose of their one-half (1/2) community property share by a Will, Trust, or even a marital agreement.
Our Texas state constitution allows for spouses to make marital agreements amongst themselves concerning the division of the marital and non-marital estate. One type of marital agreement that is most commonly known and understood is a “pre-marital” or “pre-nuptial” agreement. In Texas, spouses can make agreements between themselves at any time during their marriage concerning the division of the community property and any separate property they own.
Questions about community property laws come up more often at the death of a spouse than during a divorce. In the state of Texas, the distribution of marital property during a divorce is a “just and right” distribution. At death, however, and in the absence of a marital agreement or Will, Texas community property laws apply. Texas probate and estate administration laws concerning who is to receive the deceased spouse’s 1/2 interest in the community property differ, depending on whether the surviving spouse is also the parent of all of the deceased spouse’s children, and whether the property in question is personal property or real property (real estate).
An estate planning attorney can assist and advise you about Texas community property laws and whether a marital agreement should be a part of your estate plan. An estate planning attorney with Law Office of Adriane S. Grace, PLLC can also draft a marital agreement and provide advice and counsel if you have been offered a pre-marital, or pre-nuptial agreement in consideration of a marriage proposal.
