Community Property and Probate in Texas: What Spouses Need to Know

Texas is one of only nine community property states in the United States, and this has a major impact on how property is handled when a spouse dies. If you are a surviving spouse — or if you are planning your estate as a married couple — understanding these rules is essential.

What Is Community Property?

Under Texas law, community property is all property acquired by either spouse during the marriage, with certain exceptions. The basic rule is straightforward: if it was earned or purchased during the marriage, it is community property.

Community property includes:

Wages, salaries, and bonuses earned during the marriage
Property purchased with community funds
Investment returns on community assets
Business income earned during the marriage

Each spouse owns an undivided one-half interest in all community property. This is true even if one spouse earned all the income. Texas law treats the marriage as an economic partnership.

Community Property vs. Separate Property

Not everything a married person owns is community property. Separate property belongs exclusively to one spouse and includes:

Assets owned before the marriage
Gifts received by one spouse during the marriage
Inheritances received by one spouse
Personal injury recoveries (except lost wages)

The critical issue with separate property is tracing. If separate property gets mixed (commingled) with community property, it can be very difficult to prove what is separate. This is why estate planning attorneys recommend keeping separate property in a separate account with clear records.

When a Spouse Dies with a Will

When a married person dies with a will, the will controls distribution — but only to the extent they had the right to give it away.

Community Property: Each spouse owns one-half. The deceased can only give away their one-half through the will. The surviving spouse's one-half is not part of the estate and does not go through probate.

A common estate plan is for each spouse to leave their half of community property to the surviving spouse, keeping things simple and ensuring the survivor retains access to all marital assets.

Separate Property: The deceased can give away all of their separate property through the will without restriction.

When a Spouse Dies Without a Will

When a married person dies intestate, Texas succession laws determine who inherits. The results depend on whether the deceased had children, and specifically whether those children are from the current marriage.

All Children from the Marriage

The surviving spouse inherits all community property. For separate personal property, the spouse gets one-third and children share two-thirds. For separate real property, the spouse gets a life estate in one-third.

Children from a Previous Relationship

The surviving spouse keeps only their one-half of community property. The deceased's one-half goes to their children — not to the surviving spouse. This catches many families off guard and can create serious financial hardship.

For a detailed explanation, read our article: What Happens If Someone Dies Without a Will in Texas?

Homestead Protections

Texas has some of the strongest homestead protections in the country:

The surviving spouse has the right to live in the homestead for life, regardless of who inherits the property
The homestead cannot be sold to pay the deceased's debts (with limited exceptions)
Minor children also have homestead rights

These protections are powerful but can create conflict if the surviving spouse wants to stay in the home while the children who inherited want to sell.

Practical Steps for Married Couples

Given the complexity of community property rules, every married couple in Texas should:

Create a will or estate plan that clearly addresses both community and separate property
Consider a living trust for streamlined asset transfer
Keep separate property documented and segregated
Review beneficiary designations on all accounts
Discuss your wishes openly with your spouse and family

Contact us for a free consultation to review your community property situation and create a plan that protects your family.