Couples who have relocated to Texas, particularly if they come from a common-law state, have some serious legal issues they need to recognize.
It has to do with property ownership and inheritance.
Types of Property States
In the United States, there are two types of property states: community property and common law property. Only Texas and 8 other states follow community property laws. The remaining 41 states follow the common law. The difference between the two types of property systems is vast.
In a community property state, every asset that is acquired during marriage is owned jointly by both spouses, regardless of how the asset is titled. By contrast, in a common law property state, ownership of an asset is determined by how record, legal title of the asset is held, regardless of whether it was acquired before or during the marriage.
As an example, assume Ted and Alice are married. Ted buys a car and titles it only in his name. If they live in Texas, that car is presumed to be community property, and Ted and Alice each own an undivided one-half of the car.
However, if they live in a common law state, the car is owned solely by Ted.
The full impact of that difference in ownership is displayed when one spouse dies. Suppose Ted passes away. If he was domiciled in Texas, he could dispose of only his ½ of the car through his will. Alice still owns the other half of the car.
If Ted had been domiciled in a common law state when he died, then he could dispose of 100% of the car. Alice has no ownership interest.
Recognizing that an unfair result could occur if one spouse owns most of the property, some common law property states have a “surviving spouse’s election.” If their common law state had such an election, then Alice could choose between what she was left in Ted’s will or a statutory “elective share” of his estate. The elective share laws protect the surviving spouse from being completely disinherited by the deceased spouse.
Texas does not have a statutory surviving spouse’s election because its community property laws have built-in protection for the spouse.
Relocating from a Common Law State
Now we come to the issue facing couples who relocate to Texas from a common law state. When couples move to Texas, the property they bring with them does not automatically become community property. The laws of the state where they were domiciled when they acquired the property determines the property ownership. However, if they are domiciled in Texas when they die, the laws of Texas govern the disposition of their personal property and any real property located in Texas.
Thus, we often see situations where a couple relocates here, one spouse dies, and the surviving spouse is effectively disinherited because all the property was acquired by the deceased spouse in the common law state.
Then there is the tax issue regarding basis. When one spouse dies, that spouse’s property gets a step up in basis for tax purposes. Couples living in community property states get a bonus because the entire community property (and not just the deceased spouse’s share) gets the adjusted basis. This can lower capital gains taxes for the surviving spouse.
Yet couples who have relocated to Texas often miss out on this bonus. Why? Because the property they acquired while domiciled in a common law state is not community property.
One solution to consider: a written conversion agreement that converts separate property to community property.
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Virginia Hammerle is an attorney with Hammerle Finley Law Firm. She is entering her 40th year in the practice of law. She is Board Certified in Civil Trial Law by the Texas Board of Legal specialization. Contact firstname.lastname@example.org to receive her firm’s newsletter.