What is the Difference Between Separate Property and Community Property?

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A lot of people think that community property only applies when you get a divorce. This isn’t exactly true. Yes, when you get a divorce, the court does break your assets down into community property and separate property.

What a lot of people don’t realize is that the same breakdown of assets applies when you die. If you don’t have a will, your assets are going to be divided according to the rules dictated in the Texas Probate Code.

Basically, there are two types of property in Texas. One is separate property. This includes assets you earned or acquired on your own. For example, if you bought a house prior to getting married, it would be considered separate property.

On the other hand, there is something called community property. This refers to all property accrued, accumulated or acquired during the course of a marriage. For example, the wages and savings you and your spouse have will be considered community property.

Your Corpus Christi probate attorney understands the differences between separate and community property. This is important when it comes to estate planning. You want to make sure your lawyer drafts your will and trust agreements with these things in mind.

Why Does the Probate Code Break Property Into These Categories?

You may wonder why the courts break property up into separate and community property. Not all states do this. Texas happens to be a state that recognizes community property.

The rationale behind this separation has to do with fairness. If someone brings certain property into a marriage, they shouldn’t have to share that property with anyone else. Likewise, if someone gives you a gift or leaves you an inheritance, they mean for you to have that property – not someone else.

On the other hand, the courts do want to make sure that people are taken care of when you die. For example, if you have small children when you pass around, it’s important that they are taken care of. The state certainly doesn’t want to support them. Nor do they want to support your spouse. So, certain property is designated as community property for this reason.

Additionally, the Courts want to be fair to your spouse when you die. They stood by your through life and in your death. If you didn’t want them to inherit your assets, you should have divorced them. Or, you should have drafted a will indicating who your assets should go to.

What are Some Examples of Separate Property?

If you die without a will, the Texas Probate Code dictates who gets your property. When it comes to separate property, you’ll notice that the law favors your blood family in addition to your spouse.

For example, if you die and your spouse is still alive, they are entitled to a portion of your estate. However, they don’t get all of it. Your parents and siblings will be entitled to at least half of your assets if you die with no children. Likewise, when it comes to land, your spouse will be entitled to it, but only until they die. At that time, it will revert to your immediate family.

Some common examples of separate property include the following:

  • Any real and personal property you brought into the marriage
  • Any inheritance that was left to you directly
  • Land that has been in your family for years
  • Gifts and inheritances that were given to you (and not to you and your spouse jointly)

For all of these assets, the Probate Code treats them as separate property. Your Corpus Christi probate attorney can help go through your list of assets and identify which ones qualify as separate property.

What Qualifies as Community Property in Texas?

Any assets that are considered community property will be treated differently when you die. If you have a will, you can leave your community property to anyone you wish (to a certain extent.)

There are some limitations when it comes to community property. Your spouse is entitled to half of it no matter what. You can’t draft a will that gives away their portion of your shared property.

However, when it comes the intestate estates, the law decides how these assets are divided. The general rule is that your spouse will be entitled to at least half of your community property.

Some common examples of community property include:

  • Your marital home
  • Any artwork or jewelry that was purchased or gifted during the marriage
  • Cars, boats and RVs
  • Joint bank accounts, 401K, etc.

If you have any questions about how your assets will be distributed upon your death, call and experienced probate lawyer at Eddington & Worley today.