The following are some important marital property laws in the state of Texas:
COMMUNITY PROPERTY
Community property consists of the property, other than separate property, acquired by either spouse during marriage. Texas Family Code (T.F.C.) Section 3.002.
SEPARATE PROPERTY
A spouse’s separate property consists of:
(1) the property owned or claimed by the spouse before marriage;
(2) the property acquired by the spouse during marriage by gift, devise, or descent; and,
(3) the recovery for personal injuries sustained by the spouse during marriage, except any recovery for loss of earning capacity during marriage. T.F.C. Sec. 3.001.
GIFTS BETWEEN SPOUSES
If one spouse makes a gift of property to the other spouse, the gift is presumed to include all the income and property that may arise from the property. T.F.C. Sec. 3.005.
HOMESTEAD PROPERTY
Definition of Homestead: A homestead is a specific amount of real property, along with any improvements placed on it, that is used by a single adult or a family as a home. Tex. Constitution Article 16, Section 51. A person or family can have only one homestead per time. In order to qualify as a homestead a residence must be attached to real property in such a manner to make the residence a permanent part of the real estate. The Texas constitution and the Texas Property Code provide for two types of homesteads: Urban and Rural. Tex. Const. Art. 16, Section 51; Tex. Property Code Section 41.002(a),(d).
HOMESTEAD PROTECTIONS
Sale, Conveyance, or Encumbrance of Homestead. Whether the homestead is the separate property of either spouse or community property, neither spouse may sell, convey, or encumber the homestead without the joinder of the other spouse except as provided for by the Texas Family Code or by other rules of law. T.F.C. Sec. 5.001.
The surviving spouse has the right to occupy the homestead after the death of the other spouse. Tex. Const. Art. 16, Section 52. This right continues until the surviving spouse voluntarily abandons the homestead. “The surviving spouse is responsible for the payment of all property taxes and mortgage interest on the property and is not entitled to reimbursement for voluntary improvements to the homestead. The eventual beneficiaries of the homestead are responsible for the payment of the homestead’s casualty insurance premiums and mortgage-principal payments and are not entitled to any rents or revenues derived from the homestead during the surviving spouse’s occupancy.” Hill v. Hill, 623 S.W.2d 779 (Tex.App-Amarillo 1981); Sargent v. Sargent, 15 S.W.2d 589 (Tex. 1929).
Effect of Second Marriage. The remarriage of the surviving spouse does not affect his/her right to continue to occupy the homestead. Tex. Const. Art. 16, Section 52. “However, if the surviving spouses dies, his/her new spouse’s right to occupy the homestead is limited to the surviving spouse’s interest in the property. If the surviving spouse’s interest in the property was shared with the children of deceased spouse’s first marriage, the children of the first marriage can demand a partition of the homestead from the new spouse.” Sparks v. Robertson, 203 S.W. 622, (Tex.App.-Austin 1947, writ ref’d).