Texas Community Property at Death
In Texas, each spouse owns half of the community property, and a will can only pass the decedent's own half plus their separate property. The surviving spouse keeps their half no matter what a will says. If there is no will, intestacy law gives the survivor either all the community property or half, depending on whether the decedent had children from another relationship. Community property also receives a full step-up in tax basis at the first death.
What counts as community property
Texas is a community property state. Property either spouse acquires during marriage is presumed community, with some exceptions. Separate property includes what each spouse owned before marriage, gifts and inheritances received during marriage, and certain personal injury recoveries. Income from separate property is generally community. A spouse claiming something is separate bears the burden of proving it with clear and convincing evidence, which is why records matter.
What a will can and cannot do
- A will can leave the decedent's half of the community property and all of their separate property.
- A will cannot leave the survivor's own half of the community property to someone else.
- A spouse who wants to give property in a will that is not theirs may force the survivor to choose between taking under the will and keeping their own property.
If there is no will
Under intestacy, if all the decedent's children are also children of the surviving spouse, the spouse inherits all of the community property. If the decedent had a child with someone else, the spouse inherits half the community property and the other half goes to the decedent's children. Separate property is divided differently. See dying without a will.
Tax basis
When a spouse dies, the income tax basis of property they owned can reset to its fair market value at death. For community property, federal law gives the survivor a reset on both halves, which can reduce or erase capital gains if the survivor sells appreciated assets. Separate property gets the reset only on the decedent's property. Trusts, partition agreements and beneficiary designations that change community into separate property can lose this advantage, so coordinate any plan with a tax advisor.
Planning tips
- Keep records showing what is separate property, such as pre-marriage account statements and inheritance papers.
- If you want to change the character of property, use a written agreement.
- Check that your will, trust and beneficiary designations work together with community property rules.
See also our guide on living trusts for married couples.
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Book Free ConsultationFrequently asked questions
Does my spouse automatically own half of everything?
Only community property. Separate property belongs to the spouse who owned it, though it can be hard to prove without records.
Can I leave my spouse out of my will?
You can leave your half of the community property and your separate property to others, but your spouse keeps their own half and may have homestead and allowance rights.
What happens to community property if there is no will?
It goes to the surviving spouse or is divided with children, depending on whether the decedent had children from another relationship.
Does community property get a step-up in basis?
Yes. At the first spouse's death, both halves generally receive a new basis equal to fair market value.