Texas Community Property and a Surviving Spouse's Rights

By Rozsa Gyene, California estate planning attorney, State Bar of California #208356. Published September 28, 2026. Last reviewed September 28, 2026.

This guide cites the Texas Family Code for what community property is and the Texas Estates Code for what happens to it and to the spouse at death. It is general information about the statutes, not advice about a particular family.

Community property and separate property

A spouse's separate property is what the spouse owned or claimed before the marriage, what the spouse acquired during the marriage by gift, devise or descent, and personal injury recoveries other than lost earning capacity (Family Code Section 3.001). Community property is all other property acquired by either spouse during the marriage (Section 3.002). Property possessed by either spouse during or on dissolution of the marriage is presumed to be community property, and separate character must be proved by clear and convincing evidence (Section 3.003). During the marriage each spouse manages the community property that spouse would have owned if single, such as personal earnings, and the rest is managed jointly unless the spouses agree otherwise (Section 3.102).

The practical consequence at death: the surviving spouse's half of the community property is not part of the deceased spouse's estate at all. A will, a trust or the intestacy rules dispose only of the decedent's half and the decedent's separate property.

What passes when there is no will

Estates Code Section 201.003 governs the community estate of a spouse who dies without a will. The deceased spouse's community estate passes to the surviving spouse if no child or descendant survives, or if all the surviving children and descendants of the deceased spouse are also children or descendants of the surviving spouse. If the deceased spouse is survived by a child or descendant who is not also the survivor's, the deceased spouse's undivided one half of the community estate passes to those children or descendants, and the community estate passes charged with the community debts.

Separate property follows Section 201.002. If the deceased spouse left a child or descendant, the surviving spouse takes one third of the separate personal property and a life estate in one third of the separate land, with the remainder to the children. If there is no child, the surviving spouse takes all of the separate personal property and one half of the land outright, and the other half passes to the decedent's parents, siblings or their descendants; if none of those survive, the spouse takes the entire estate. An heir must survive the decedent by 120 hours (Section 201.056).

No elective share, and what replaces it

Some states let a surviving spouse claim a fixed share of the estate no matter what the will says. The Texas Estates Code contains no such provision; the spouse's protection is the half of the community property the spouse already owns. That leaves the deceased spouse free to leave their half of the community and all their separate property to anyone. Three statutory rights soften that result and apply regardless of the will.

The homestead

The homestead rights of the surviving spouse and children are the same whether the home was separate or community property (Estates Code Section 102.002). Title to the homestead descends like other real property (Section 102.003), but if a spouse or minor child survives, the homestead is not liable for the estate's debts other than purchase money, taxes, construction liens, owelty, refinanced liens, home equity loans and reverse mortgages (Section 102.004). The homestead may not be partitioned among the heirs during the surviving spouse's lifetime for as long as the spouse elects to use or occupy it as a homestead (Section 102.005), and only after the spouse dies, sells the interest or stops occupying it may it be divided (Section 102.006).

Exempt property or an allowance in its place

After the inventory is approved, or earlier on application, the court sets aside the homestead for the surviving spouse and minor children, and the other exempt property listed in Property Code Section 42.002(a) for the spouse, minor children, unmarried adult children living with the family and incapacitated adult children (Estates Code Section 353.051). The executor delivers the homestead to the surviving spouse (Section 353.052). If the exempt items are not among the decedent's effects, the court makes a reasonable allowance in their place: not more than $45,000 in lieu of the homestead and not more than $30,000 in lieu of other exempt property (Section 353.053).

The family allowance

The court also fixes a family allowance for the support of the surviving spouse, minor children and adult incapacitated children (Section 353.101), in an amount sufficient for their maintenance for one year from the date of death, paid in a lump sum or installments (Section 353.102). No allowance is made for a spouse who has separate property adequate for their own maintenance (Section 353.101(d)). The allowance is paid ahead of all other debts and charges except Class 1 claims (Section 353.104).

Married couples and a living trust

Because Texas community property is owned half by each spouse, a married couple's trust is normally a joint trust that both spouses fund with their community property and each spouse funds with any separate property, so the trust document records which property is which. The Texas Complete Estate Plan for a married couple is built that way. The homestead, exempt property and family allowance rights described above are rights against the probate estate; a home that was properly transferred into a funded trust is administered by the successor trustee under the trust's terms. See the Texas living trust page, which lists the community property label the Texas package uses for married orders.