Do you need a pre-nuptial or marital property agreement? 5 Presumptions in Texas Marital Property Law

There are several presumptions within Texas marital property law that are effective unless the spouses alter them through the language of a property agreement. They are:

1.  In the event of a spouse’s death, the probate court must presume that all property in existence (without regard to what name is on the title for the item) is community property and each spouse owns an undivided 50% interest in it.

2.  In the event of a divorce, the divorce court must presume that all property in existence (without regard to what name may be on the title) is community property and the court has authority to divide it in a manner that the judge believes if fair.

3.  A reimbursement claim is to be paid if there has been a reduction in debt or payment for improvements from one estate (separate or community) that benefited another estate (separate or community).

4.  The income generated by a separate property asset is community property.

5.  The earnings of the parties during the marriage are community property.

The application of those rules may not always meet the objectives of the parties and, indeed, may not always be fair. Therefore, they are subject to modification through the terms of pre-nuptial or marital property agreements.

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