What Happens to Property Owned Before Marriage?

Defining “Property Owned Before Marriage” in Texas

The very first thing you should know is that Texas is one of 9 states with community property laws. These laws imply that all property acquired after marriage is jointly owned by both spouses in community property jurisdictions, whereas all property acquired before the marriage is usually considered separate property.

Separate Property Vs. Community Property

In Texas, all property owned by either spouse prior to a marriage is considered “separate” property, meaning it is not subject to division during divorce proceedings. This includes any assets acquired before marriage such as real estate, cars, stocks, bonds, and other investments. Any income earned from these separate assets is also legally exempt from consideration when dividing one’s estate.

Definition of Separate Property

Under Texas law, separate property is defined as any asset owned by one spouse prior to marriage, or received during the marriage by way of gift or inheritance from a third party. Generally speaking, separate property is not subject to division upon divorce.

Definition of Community Property

Community property, on the other hand, includes all assets acquired by either spouse during the course of their marriage. This includes income from employment and gains from investments, but may also include gifts received jointly by both spouses. Community property is generally divided equally between each spouse upon divorce.

Tax Implications of Separate and Community Property

When it comes to taxes, separate property is generally taxed separately for each spouse. This means that the gains or dividends accruing to the separate property would be reported separately on each spouse’s tax return. For community property, however, all gains and losses are generally pooled and shared equally by both spouses.

Exceptions to the Rule

Under Texas law, a few exceptions can apply to the general principle that separate property remains before marriage. These include when:

  • Separate property is commingled or converted into joint marital property
  • The ownership of separate property changes without written guidance documenting its classification as such
  • One spouse uses separate funds to purchase marital assets
  • A spouse gives a gift or inheritance to their husband or wife

Property Division During Divorce Proceedings

In the event of divorce, texas courts will typically consider any increase in value of an individual’s separate property during the course of the marriage as community property—meaning it is subject to division among both spouses. Additionally, any income derived from separate property during the course of a marriage may be deemed as community assets. Therefore, it’s important for Texans contemplating marriage (or those who have recently wed) to understand these legal distinctions so they can make informed decisions about how their assets are treated if marriage and/or divorce should occur.

What if I Buy House Before Marriage?

This is critical in Texas because a home purchased prior to marriage is considered separate property. Because separate property is not community property, the spouse who owned the house prior to the marriage will keep it. Even if the couple lived in the property for the majority of their marriage, the prior owner retains ownership.

This does not, however, mean you are completely safe. A lawyer may file a community reimbursement claim if the couple has been the mortgage payment together or if one of the spouses has paid for considerable home renovation projects. While the spouse who owns the home would most likely keep ownership, the other spouse may be required to pay for reimbursement.

In Texas, how does community property law work?

Texas is a community property state. Since all property existing at the time of divorce is presumed by law to be community property, dividing the separate property from the community assets requires a high burden of proof. A large body of case law has developed over the years to address the plethora of facts and situations that have emerged in actual divorces in Texas.

Property acquired during the marriage is considered community property in Texas unless it can be proven to be separate.

When a couple divorces in Texas, their marital assets are divided according to community property laws. This can be very confusing, and people may be uncertain of what they can claim or how the property must be divided.

How do Texas courts deal with the family residence?

When there are minor children in the home, it is popular for the custodial parent to be given permission to remain in the residence with the children after the divorce has been finalized for a set period of time. During that time, the spouse who lives in the house is usually responsible for making all mortgage, property tax, and homeowner insurance payments on time. When there are no children who live at the property, the youngest child reaches the age of majority, or any other date agreed upon by the parties or specified by the court, the residence must be sold.

Is inheritance community property in Texas?

In most cases, no – inheritance is not considered community property in a Texas divorce. Property acquired “by gift, device, or descent” is considered separate property under Texas divorce law. Property acquired prior to the marriage is also exempt. Most civil litigation awards are also separate property. Everything else is community property, which is divided between the spouses in the event of divorce.

In some cases though, community and separate property are frequently mixed. This is particularly true if the marriage survived longer than seven years, which is the average length of a divorced marriage.

FAQs about Texas Community Property

Texas law defines community property as property acquired during the marriage other than by gift or inheritance. Separate property is described as anything acquired by a spouse before or during the marriage through gift, devise, or bequest. The legislation requires that the community estate be administered in a just and equitable manner. This does not always imply equality. The court may award an inequitable division of property based on a number of factors, including the duration of the marriage, differences in earning capacities, and fault in the marriage’s dissolution.

What happens if you marry someone who already owns a house?

Generally speaking, if you marry someone who already owns a house it will remain his or her separate property. The house is not considered community property, so it will not be divided in the event of a divorce. The spouse who owns the house will retain full ownership rights and can decide to retain the house, sell it, or transfer it to another person at will.

Does my spouse have any right to my house if I owned it before marriage in TX?

In Texas, separate property remains just that – separate – even after marriage. This means that if you owned a house prior to getting married, your spouse does not automatically gain an interest in it. Therefore, unless they contribute in some way towards the expense of the house, such as making payments on the mortgage or providing labor, they do not have any rightful claim to the home.

Can my wife take my house if I bought it before marriage in Texas?

Unless you give your wife legal title to the house, she cannot take possession of it. As stated above, Texas law regards pre-marital property as separate property and it is protected from division during a divorce or other marital dissolution proceedings.

How long do you have to be married to get half of everything in Texas?

Texas is a “community property” state; this means that any property acquired during the course of a marriage is considered to be jointly owned by both spouses. If a couple divorces or separates, any community property will typically be divided between the two parties equally, regardless of how long they were married.

Are 401k protected in divorce?

In Texas, 401(k) plans are treated as separate property and generally remain the exclusive property of the individual who established and funded it. These plans are generally not subject to division during a divorce proceeding. However, there are certain exceptions that may apply depending on the circumstances of the case.

Is it better to be married before buying house?

Ultimately, this decision is up to each individual and their particular situation. Being married before buying a house may provide beneficial tax advantages for some couples, but on the other hand living together unmarried does not necessarily mean that one partner’s assets would be divided with the other in the event of a split. Of course, those who choose to cohabitate also don’t have all of the financial and legal protections available to married couples.

What are my rights if my name is not on a deed but married Texas?

If you are married and your name is not on a deed then you have no rights to the property associated with the deed. In these circumstances, only the person whose name appears on the deed has legal ownership rights to the property.

What happens if my ex-husband dies and my name is not on the mortgage?

If your former spouse passes away and your name was not on the mortgage, then you have no legal responsibility for repaying the debt associated with it. Nonetheless, if the home was held as community property when your former spouse died then you may be entitled to receive a portion of its value as part of your marital settlement agreement.

Does a spouse automatically inherit everything in Texas?

No, a surviving spouse does not automatically inherit everything upon their partner’s death unless he or she is specifically named in their will or an applicable trust document. Generally speaking, laws vary by state regarding what assets are exempt from estate taxes and what portions must be paid out to creditors and surviving family members. It’s recommended that individuals consult an attorney for assistance in understanding these laws prior to suddenly inheriting an estate.

What if my partner dies and the mortgage was in their name only?

If your partner passed away and the mortgage was solely in his/her name, then you are not obligated to pay back any remaining debt associated with it. However, if the house was held as community property then you may have to pay back any remaining balance due even though your name is not on the mortgage.

What happens to property owned before marriage in Texas?

Property owned prior to marriage remains separate property even after marriage in Texas. This means that it should not be subject to division during a divorce or other marital dissolution proceedings. Furthermore, any debts incurred on this property belong only to the individual who originally purchased it.

What is the importance of marital status on a deed?

The marital status of an individual who purchases a home can play an important role in how much legal protection they have over their property. Typically speaking, separate property (such as a home purchased prior to marriage) provides greater protection against creditors, debts, and judgments than community property (such as a home purchased during marriage). As such, it’s important to understand how your marital status may affect ownership rights and liabilities associated with any real estate that you purchase.

Can you spend some of your $15,000 in an emergency and then pay it back later from community property while still claiming the entire $15,000 as separate property?


Can you claim your $15,000 income as separate property?

No. Income derived from separate property is considered community property.

Can you transfer funds from one account to another while still retaining your separate property claim?

Yes, if you possess the necessary documentation.

Can you use your $15,000 to buy stock and then claim it as separate property?

Yes, if you have the paperwork to prove it was that exact amount of money that was used to buy the stock.

What if you put the $15,000 in a joint account?

You can still make a separate property claim if you have documentation proving the transfer of funds from your premarital account to a joint account and can overcome the presumption that you intended to gift your spouse an interest in the funds.

Only properties owned before getting married or procured during marriage by gift or inheritance is considered separate property in Texas. Everything else is public property. Even if you do not have a premarital agreement, there are numerous ways to protect your separate property.

Can Property Acquired Before Marriage be Divided in Divorce?

Yes, if the owner of the asset does not meet the burden of demonstrating that the property before the court on the date of divorce is the same property owned by one of the parties prior to the marriage. It is typical for individuals to think that if they had funds in a bank account, CD, or similar account period leading up to marriage – assume, $15,000 – they are entitled to receive that amount back as separate property at the time of divorce. If that $15,000 is still on deposit inside an account today and you can prove it, that property cannot be divided in a divorce. The problem is that people don’t realize they might get divorced and have to keep all the records they may need to demonstrate a separate property claim years later.

Final Word

Good record-keeping is necessary to support separate property claims during a divorce. Many partners face difficulties because they did not intend to divorce and have intermingled their estate and assets so that everything becomes community property. That brings us back to the law, which states that all property is presumed to be community property, except if proven otherwise.