How do I determine what is separate versus community property?

UPDATED: Sep 30, 2022

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How do I determine what is separate versus community property?

I live in a community property state. I have been married 34 years but my wife and I are going to divorce. About 10 years ago, my dad died and I was his only child. I am the executor of his estate and was the sole person in charge of a large Trust. My sons were also named as beneficiaries in the Trust (generation skipping) but not my wife. Approximately 9 years ago, I used money from my inheritance to buy a house that I paid cash for using money from the Trust and from the bank account tied to the Trust. I am the only person who signed the deed. Is the house community or seperate property?

Asked on December 27, 2015 under Family Law, Texas


B.H.F., Member, Texas State Bar / FreeAdvice Contributing Attorney

Answered 6 years ago | Contributor

In Texas, property acquired during the marriage is presumed to be community property.  However, if an item was obtained by gift, devise, or decent, then it is separate property.
So... the inheritance that you received would clearly be separate property.  The house tha tyou purchased may be community or separate property depending on a few factors.
If you paid for house 100% out of your inheritance, then you can trace the flow of funds... and the house would also be considered separate property. 
If you only put a good deposit down on the house, but the balance was paid for out of community funds... then you may have a mixed property asset.  This means the house could be deemed separate property, but the community would be entitled to reimbursement for any funds expended by the community on the house.  The house could also be deemed community property, but you would be entitled o reimbursement for the funds you put into the original deposit.  Either way, your initial investment is subject to some type of recoupment.  I've seen judges rule using one of the two theories listed above.  To know how the judges in your jurisdiction lean, then visit with a family law attorney in your area to get a better feel of their approach.

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