The law has a love-hate relationship with “love.” Alas, roses, wine, and chocolate-covered strawberries have no place in the courtroom.
The most prominent example of love running afoul of the law is that most sacred of covenants: marriage. Most marriages are entered into because the couple professes “love” for each other. Yet the law considers marriage nothing more than a legally sanctioned partnership with rules made up by the state. There is no mention of love in the law.
Love can cause problems when it translates to actual behavior, in great part because couples in love often seem incapable of making rational decisions. How else do you explain so many people blithely entering a complex legal arrangement such as marriage with no thought of the consequences?
Marriage & Community Property
Texas has some very definite implications for a married couple.
From the date of the marriage, the earnings of both spouses are lumped together into community property. Each spouse has an undivided ½ interest in every penny of income. It does not matter which spouse earned the money or where the money, once earned, is deposited. It is all community property.
Another prominent category of community property is assets. Every asset purchased by a spouse after the date of marriage is presumed to be community property. A mundane example is the purchase of a new couch by the happy couple. Each spouse is presumed to own an undivided ½ interest in every part of that couch, down to the last cushion. If the couple later decides to divorce, it will not be easy to render the couch asunder.
A spouse cannot title his or her way out of community property. It does not matter if a vehicle purchased after marriage is titled in only one spouse’s name; the other spouse still owns one-half. Some couples meticulously keep their bank accounts separately titled. That is a waste of time because every penny in that bank account is presumably owned ½ by each spouse.
Then there are the debts. Every debt incurred by a spouse is presumed to be a community debt, whether it arises from credit card or unpaid taxes.
The End of Community Property
You cannot “separate” your way out of community property. Even if you have not lived together for years, your spouse still has a community property interest in your earnings and assets.
Death may stop the community property clock from continuing to run, but you cannot die your way out of your spouse’s continuing right to existing community property. Not only does your spouse still have that undivided ownership interest in all assets, but your death also means that your spouse gets even more rights: the surviving spouse’s homestead right in the residence, and the right to a family allowance to name just two.
Can you defeat your spouse’s rights by naming another beneficiary on your accounts? Not a chance. Your spouse can claw back his or her share.
Your spouse has additional rights as the statutory default decision-maker for you regarding such matters as medical, guardianship and burial.
Precious few couples discuss the business side of marriage before tying the knot. That’s a shame, because what better time to evaluate the consequences and decide if a written marital agreement, power of attorney or other planning document would be a good idea. Maybe even squeeze in a meeting with a lawyer between wedding cake tastings.
Marriage. As far as the law is concerned, love’s got nothing to do with it.
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Virginia Hammerle is in her fourth decade of practicing law. She is Board Certified in Civil Trial by the Texas Board of Legal Specialization and an Accredited Estate Planner. Contact her at firstname.lastname@example.org or visit www.hammerle.com. This column does not constitute legal advice.