Texas community property and the family home

What counts as community property and what stays separate?

The Texas Family Code sorts a married couple’s assets into two groups.

• Separate property (§ 3.001): what a spouse owned or claimed before the marriage, what a spouse receives during the marriage by gift or inheritance, and most personal-injury recoveries.
• Community property (§ 3.002): everything else either spouse acquires during the marriage.

Because of the presumption in § 3.003, a home bought with paychecks earned during the marriage is community property, even if only one name is on the deed. A spouse who claims a home is separate must prove it with clear and convincing evidence. Section 3.004 lets a spouse record a schedule of separate property in the county deed records, which creates a paper trail.

IRS Publication 555 (revised December 2024) adds a Texas-specific point: in Texas, as in Idaho, Louisiana and Wisconsin, income from most separate property is community income. Rent from a house that one spouse owned before the marriage is therefore usually community income.

Who can sell or mortgage the home?

Management. Under § 3.102, each spouse alone manages the community property they would have owned if single, such as their own earnings. Mixed community property is under joint management unless the spouses agree otherwise in writing.

Homestead. Section 5.001 is stricter: whether the homestead is separate or community property, neither spouse may sell, convey or encumber it without the joinder of the other spouse. Narrow exceptions exist, such as a spouse judicially declared incapacitated (§§ 5.002, 5.003). For home equity loans, Article XVI, § 50(a)(6)(A) of the Texas Constitution requires the consent of “each owner and each owner’s spouse.” See our page on title insurance in Texas.

What if one spouse bought the house before the marriage?

The home stays that spouse’s separate property. Section 3.006 applies the rule of inception of title: ownership is fixed when the right to the property arose, at purchase. Adding the other spouse to the deed does not change this by itself: under § 4.203(b), the mere transfer into both names does not convert separate property. Conversion requires a written agreement (§ 4.203(a)).

Section 3.402 gives the other side a claim for reimbursement when one marital estate benefits another, for example when community wages pay down the mortgage on a separate-property home (§ 3.402(c)(1)). Improvements paid with community funds count too, measured by the increase in the home’s value (§ 3.402(d)(2)).

Example. Jordan buys a house in Dallas in 2019 for $300,000, with $60,000 down and a $240,000 loan. Jordan marries in 2022. Over the next four years, the couple pays down $28,000 of principal from their wages. The house remains Jordan’s separate property. At a divorce, the community estate could ask for reimbursement of the $28,000 of principal paid on Jordan’s debt. The court decides whether unjust enrichment would occur, using equitable principles and offsets (§ 3.402(e) to (g)); the separate estate cannot offset the “use and enjoyment” of the residence against those payments (§ 3.402(g)(1)). Because the house is their homestead, Jordan still needs the spouse’s signature to sell or refinance (§ 5.001).

How is the home divided at divorce?

Section 7.001 tells the court to divide “the estate of the parties in a manner that the court deems just and right, having due regard for the rights of each party and any children of the marriage.” The statute sets no 50/50 rule.

IRS Publication 555 states that the equal or unequal division of community property in a divorce does not result in a gain or loss. A later sale is another matter; see our guide to capital gains on a home sale.

What happens to the home when a spouse dies?

If there is no will, the Texas Estates Code decides.

• Community home (§ 201.003): it passes entirely to the surviving spouse if all the deceased spouse’s children are also the survivor’s children, or if there are no children. If the deceased had a child from another relationship, the deceased’s one-half interest passes to the deceased’s children or descendants.
• Separate home (§ 201.002): if the deceased had children, the surviving spouse receives a life estate in one-third of the land; the rest goes to the children.
• Homestead right: Article XVI, § 52 of the Texas Constitution says the homestead cannot be partitioned among the heirs while the surviving spouse elects to use or occupy it.

IRS Publication 555 adds a tax point: when a spouse dies, the fair market value of the whole community property, survivor’s half included, generally becomes the new basis, if at least half is included in the deceased’s gross estate. In the IRS example, property with an $80,000 basis worth $100,000 at death gets a $50,000 basis for each half.

Can a couple change these rules by agreement?

Yes. Section 4.102 lets spouses partition or exchange community property at any time; what a spouse receives becomes separate property. Section 4.103 lets them agree that income from separate property stays separate, and a premarital agreement can cover the same ground (§ 4.003). These agreements must be in writing and signed by both spouses (§§ 4.002, 4.104). A partition is notice to a good-faith buyer without actual notice only if acknowledged and recorded in the county where the land is (§ 4.106(b)).

For advice on your own situation, see a Texas attorney; our page on real estate attorneys in Texas explains their role.