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San Antonio Express-News
Copyright 2012, Paul Premack
March 27, 2012

Did husband create Community Property with gift?

Dear Mr. Premack: I am in my second marriage. My husband acquired his house and two cars before we were married. After 6 months of marriage, he refinanced the home under his own name and had the deed put in both our names as grantees. He assured me that the house is now community property as well as the automobile he gave me to drive because we are married now. Is this true? And if not, how can we convert it from his separate property to community property so that half of the house and one of the cars is mine too? - BB
The Texas marital property system has many legal nooks-and-crannies that are difficult to navigate. Mistakes can be made when people lack a full understanding of the law. The items each of you owned on the day before you married were your separate property, and they continued to be separate property after you married. Community property is composed of your earnings, new items acquired with your earnings, and interest on your savings (even the interest on your separate property savings is community property).
You state that your new husband refinanced the house, and had the deed put in both of your names. He claims that it is now community property. There are two possible legal problems with his conclusion.
First, whether it is community or separate property, the house is your marital homestead. The bank that did the refinance should have, according to Texas law, required you to agree to (and sign) any documents that put a new lien against the marital homestead. If they failed to do so, there may be problems with the validity of their lien.
Second, when he signed a deed putting your name on the house, what he was actually doing was giving you a separate property interest in the house. A gift creates separate property. In order to create community property, he would have had to comply with section 4.202 of the Texas Family Code. A statutory disclosure of the effect of the transfer would need to be signed by both of you, and the document would need to declare that it was creating community property. If the deed he signed does not include those features, then you still own half the house but as your separate property, not community property.
You state that your husband gave you an automobile to drive and says it is community property. Again, Texas law says that it is community property if it was acquired with after-marriage earnings. If it was purchased using his separate property then it is his separate property. Even if he put the car title into your name alone as a gift, the car is your separate property, not community property. And if he kept the title in his name alone and is just letting you drive it, then community property has definitely not been created.
Dear Mr. Premack: My mother has recently passed away and neither my brother nor I were here guardian. My brother and I are Coexecutors of the Will and she left what she has to the two of us. How complicated is the probate process given this information? RG
Since you specifically mention that you and your brother were not her guardian, I’m going to assume that someone else was her guardian. A guardian is usually appointed by the same court that has jurisdiction over the probate of her Will. Her death left two legal processes. First, her Will must be admitted to probate and you (and your brother) must be granted letters testamentary as her Coexecutors.
Second, her guardianship must be closed. The guardian must file a report of death and a final accounting with the court. When it is approved, the guardian must seek court permission to deliver her remaining assets to the Coexecutors and must terminate the bond that was required by law. When the assets are delivered to you as Coexecutors, you must notify the creditors, pay any debts and taxes, handle her estate Inventory and must distribute the remaining assets per the terms of her probated Will. Thus, the added complexity for you comes from working with (or waiting for) her guardian to close her estate and to deliver her assets.

Prior Week: Does Life Estate Deed allow son to run cattle on dad's land?
Next Week: How does disgruntled patient get hold of his medical records?

Disclaimer: This column answers a specific legal question asked by an individual in Texas. The answer may or may not match your individual situation. Be careful not to treat this column as specific legal advice, as it may not meet your individual needs. It may give you a solid basis for discussion with your own attorney.  You should consult with your personal attorney before you take any action on this or any legal issue. Also, please be aware that laws change, so  this column is valid only as of the date it was published. This communication does not create an attorney-client relationship between the author and the reader.