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Did husband create Community Property with gift?

Original Publication: San Antonio Express News, March 26, 2012


Dear Mr. Premack: I am in my second marriage. My husband acquired his house and two cars before we were married. After 6 months of marriage, he refinanced the home under his own name and had the deed put in both our names as grantees. He assured me that the house is now community property as well as the automobile he gave me to drive because we are married now. Is this true? And if not, how can we convert it from his separate property to community property so that half of the house and one of the cars is mine too? – BB

The Texas marital property system has many legal nooks-and-crannies that are difficult to navigate. Mistakes can be made when people lack a full understanding of the law. The items each of you owned on the day before you married were your separate property, and they continued to be separate property after you married. Community property is composed of your earnings, new items acquired with your earnings, and interest on your savings (even the interest on your separate property savings is community property).

You state that your new husband refinanced the house, and had the deed put in both of your names. He claims that it is now community property. There are two possible legal problems with his conclusion.

First, whether it is community or separate property, the house is your marital homestead. The bank that did the refinance should have, according to Texas law, required you to agree to (and sign) any documents that put a new lien against the marital homestead. If they failed to do so, there may be problems with the validity of their lien.

Second, when he signed a deed putting your name on the house, what he was actually doing was giving you a separate property interest in the house. A gift creates separate property. In order to create community property, he would have had to comply with section 4.202 of the Texas Family Code. A statutory disclosure of the effect of the transfer would need to be signed by both of you, and the document would need to declare that it was creating community property. If the deed he signed does not include those features, then you still own half the house but as your separate property, not community property.

You state that your husband gave you an automobile to drive and says it is community property. Again, Texas law says that it is community property if it was acquired with after-marriage earnings. If it was purchased using his separate property then it is his separate property. Even if he put the car title into your name alone as a gift, the car is your separate property, not community property. And if he kept the title in his name alone and is just letting you drive it, then community property has definitely not been created.


Paul Premack is a Certified Elder Law Attorney practicing estate planning and probate law in San Antonio.


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