Last updated July 18, 2026
Texas is a community-property state: property acquired by either spouse during marriage is community (Tex. Fam. Code s. 3.002) and each spouse owns an undivided one-half of it. Your will controls your half plus your separate property — nothing more. Get the character wrong and a plan gives away property the testator never owned. This is general information about Texas law, not legal advice.
The three buckets
Separate property (s. 3.001)
Owned before marriage; received during marriage by gift, devise, or descent; and personal-injury recoveries except lost earning capacity.
Community property (s. 3.002)
Everything else acquired by either spouse during the marriage — paychecks, the house bought during marriage, the accounts funded from earnings — regardless of whose name is on the title.
The presumption (s. 3.003)
Property possessed by either spouse is PRESUMED community; separate character must be proved by clear and convincing evidence. Commingle accounts for thirty years and the tracing burden decides who inherits.
What this means when someone dies
At the first death the community divides: the survivor keeps their own half outright; the decedent’s half passes by will — or, intestate, under Tex. Est. Code s. 201.003, where the blended-family trap lives: one child from outside the marriage sends the decedent’s community half to the children, not the spouse. Separate property follows its own splits (s. 201.002). And because the survivor already owns half of everything community, Texas has no elective share — the spousal safety net is the property system itself, plus homestead and exempt-property rights.
Drafting around character
Inventory by character, not just by asset
A Texas plan starts by classifying each asset: separate, community, or mixed (and traceable?). Only then can the will's gifts be sized honestly.
Survivorship agreements exist — in writing
Spouses can agree in writing that community property passes to the survivor (the Estates Code's community-property-survivorship machinery). Without a signed agreement, community property does NOT auto-survive — a common out-of-state assumption that fails in Texas.
Out-of-state property and moves
Couples moving into or out of Texas carry character questions with them (quasi-community concepts, common-law titles). Flag every asset acquired in another state for review.
Your Texas Estate Plan classifies property character first — so every gift in your will is one you actually own.
Start your Texas Estate PlanGeneral information about Texas law, not legal advice, and not a substitute for the advice of an attorney. EstateDraft is software, not a law firm.
Frequently asked questions
- What counts as community property in Texas?
- Everything acquired by either spouse during the marriage that isn't separate property (Tex. Fam. Code s. 3.002). Separate property is what a spouse owned before marriage, what they received during marriage by gift, devise, or descent, and personal-injury recoveries other than lost earning capacity (s. 3.001).
- Who has to prove property is separate?
- The spouse claiming it. Property possessed by either spouse during or on dissolution of marriage is PRESUMED community (s. 3.003(a)), and separate character must be proved by clear and convincing evidence (s. 3.003(b)) — which is why tracing records matter in estate administration.
- What part of the community estate can my will give away?
- Only your one-half. Each spouse owns an undivided half of the community estate; your will controls your half and your separate property — it cannot devise your spouse's half.
- Does Texas have an elective share like Florida or New York?
- No. Common-law states give a surviving spouse an elective share because the survivor may own nothing; Texas's protection is structural — the survivor already owns half of everything the community acquired, plus homestead rights and exempt-property allowances. That is why a Texas plan is drafted around property CHARACTER, not around elective-share math.
- What happens to community property if my spouse dies without a will?
- Tex. Est. Code s. 201.003: the decedent's community half passes to the surviving spouse IF all of the decedent's surviving children are also the survivor's — or if there are no children. If any child is from outside the marriage, the decedent's half passes to the children instead, and the survivor co-owns with them.
General information about Florida law, not legal advice.