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Wills and Probate

Texas Community Property at Death

The short answer

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.

This page is general information, not legal advice, and does not create an attorney-client relationship. Rules change and every situation is different. Talk to a licensed attorney before acting on any of it. Last updated 2026-11-02.

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

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

See also our guide on living trusts for married couples.

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Frequently 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.

Related questions

This page is for general informational purposes and does not constitute legal advice. Anchor Legacy Planning is not a law firm; legal work is performed by independent, licensed attorneys.