Texas is one of nine states that follow community property laws here in the United States. Essentially, this means that any income and most property acquired during a marriage are jointly owned by both spouses, no matter whose name is on the title.
There are a few exceptions for property considered “separate,” such as:
- Property owned before the marriage
- Property received as a gift or inheritance during the marriage
- Certain personal injury awards
- However, even separate property can become community property under certain circumstances, such as commingling assets without proper documentation.
How Community Property Affects Probate
Probate is the legal process of distributing a deceased person’s estate. When someone passes away in Texas, their estate is divided according to their will (if they have one) or by state law (if there isn’t a will). Under community property laws, this can lead to unique challenges and opportunities regarding asset distribution.
Here’s how community property impacts probate:
Married Without a Will
When a married individual passes away without a will, their estate is subject to Texas intestate succession laws:
Community Property: The surviving spouse generally retains their half of the community property. They may also inherit the deceased spouse’s portion—but only if there are no children from outside the marriage. If the deceased had children from another relationship, the surviving spouse keeps their 50%, and the other half goes to the deceased’s children.
Separate Property: Separate property is divided differently. For example, the surviving spouse inherits a smaller portion of separate real estate compared to community property, with the remainder going to the deceased’s children or other relatives.
Married With a Will
If a valid will exists, the estate is distributed according to its instructions. A will allows married couples to specify how their half of the community property and any separate property will pass to heirs, ensuring personal wishes are honored.
Unmarried or Divorced Individuals
For individuals who are single or divorced, community property rules don’t apply. Their estate is divided based on their will or Texas intestate succession laws.
Steps to Protect Your Inheritance Rights
Understanding and planning for the implications of community property on probate can help you protect your inheritance and ensure your loved ones are taken care of. Here are some practical steps to consider as you move forward:
Create a Will
One of the most important ways to protect your estate is to have a legally valid will in place. This allows you to clearly outline how you want your property distributed and avoid disputes among heirs.
Keep Property Documentation Updated|
Ensure clear documentation for any separate property, especially for assets acquired before marriage, gifts, or inheritances. This can help prevent them from being mistakenly classified as community property.
Consider Prenuptial or Postnuptial Agreements
For married couples, these agreements can help define what is separate versus community property, offering clarity in estate planning and probate.
Establish a Living Trust
A living trust can allow assets to bypass probate entirely and be distributed according to your instructions. This can save time, avoid court interference, and maintain privacy.
Consult a Probate Attorney
Texas community property and probate laws are complex. Having a knowledgeable legal professional on your side can ensure your rights are protected and your estate is handled correctly.
Why Having a Will is Crucial
Without a will, Texas intestacy laws may distribute your estate in ways you wouldn’t agree with. This can create unnecessary stress and conflict for surviving family members. A will gives you control over the division of your property and ensures your wishes are carried out seamlessly.
For example, by specifying in your will how your half of the community property will be distributed, you can leave assets to a surviving spouse, children, or even charitable organizations. It can also clarify what happens to your separate property, reducing the risk of disputes.
Compassionate Legal Guidance with Matt Zimmerman and Sydney Key
Estate planning and probate matters often come with significant emotional weight. At Blizzard and Zimmerman, attorneys Matt Zimmerman and Sydney Key offer compassionate, personalized legal services tailored to protect your wishes and your loved ones’ best interests.
Whether you’re drafting a will or navigating the complexities of probate, you can rely on their expertise to guide you every step of the way.
Final Thoughts
When dealing with community property and probate in Texas, preparation is everything. By understanding how the law works and taking proactive steps like creating a will and consulting with an experienced attorney, you can ensure your estate is managed effectively and with care.
Have questions about community property or probate in Texas? Contact Blizzard and Zimmerman Attorneys today to schedule a consultation with Matt Zimmerman or Sydney Key. Together, we’ll help you secure your family’s future and provide peace of mind.
