Dear Mr. Premack: I am engaged to be married, and it will be the second marriage for both of us. We each have one child from our previous marriages. We will live in his home, which his ex-wife signed over to him via a special warranty deed after their divorce. He says once we’re married it automatically becomes community property of husband and wife and I will automatically own 1/2. Is that true, or should I take other measures to fairly protect any ownership or other interest I may be entitled to as his wife, should he die or we divorce? – BM
Under Texas marital property law, an asset which is owned by one of the parties before the marriage (which is legally that party’s separate property before the marriage) remains separate property after the marriage takes place. Community property is limited to items acquired by either spouse during the course of their marriage (except items acquired by gift or inheritance, or those which the spouses agree in writing are separate property).
Despite those definitions, there is a presumption under Texas law that any property possessed by either spouse is community property. It may seem contradictory to say that an item like your fiance's house is his separate property, but may be “presumed to be” community property when you get married. However, the presumption only applies when there is no evidence available to determine the true status of an item. In the case of his house, the evidence that it is his separate property is his deed to the property.
Your fiance may be misapplying that presumption when he tells you that you’ll automatically own ½ the house when you marry him. He is wrong about his conclusion, but may have the correct intentions. If he desires that you become ½ owner of the house when you marry him, it won’t happen automatically but it can happen via direct legal action.
There are two legal methods for him to share title to the house. First, he can simply sign a deed conveying a one-half interest in the house to you after the marriage. However, a simple conveyance does not create community property; the two of you will each own ½ the house as separate property interests.
Second, he can invoke a relatively new law which allows him to gift you half the house and convert both of your interests to community property. To do so, he’ll have to hire an attorney to draw up a legal document which follows the rules set out in Chapter 4, Sub-chapter C of the Texas Family Code. You’ll both need to sign the agreement, and it will have to be recorded in the county’s real property records. You cannot change the title on your own (you cannot “take other measures” without his participation).
What if your fiance discovers this information and decides that he does not want to volunteer to give you half the house? Your “other measure” in that case may be to factor his choice into whether you will go through with the marriage or not. If you decide to proceed without an ownership interest in the house, then:
1) If you later divorce you get no part of the house (except you might be entitled to reimbursement for some economic contribution you made to the house – like making his mortgage payments or paying for capital improvements); and
2) If he dies, he has the right to give ownership of the house to whomever he chooses (like his child by the prior marriage). You retain your homestead occupancy rights.
Paul Premack is a Certified Elder Law Attorney and a Five Star Wealth Manager (Texas Monthly Magazine 2009-2013) practicing estate planning and probate law in San Antonio.
Original Publication: San Antonio Express News, July 30, 2010