Real Estate Salesperson · Texas: Special topics · 10 min read
Texas property law: community property, homestead, wills, recording and liens
- Distinguish between separate and community property rights, management authority, and joinder requirements under Texas marital property law.
- Identify statutory protections, acreage limits, tax exemptions, and encumbrance rules for Texas urban and rural homesteads.
- Explain Texas requirements for wills, intestate descent, public recording priorities, and mechanics' lien enforcement.
Marital Property Rights and Management
In Texas, property owned or claimed by a spouse before marriage remains that spouse's separate property (Tex. Fam. Code §3.001(1)). Separate property also includes property acquired during marriage by gift, devise, or descent (Tex. Fam. Code §3.001(2)). In addition, a spouse's recovery for personal injuries sustained during marriage is separate property, except for any portion awarded for loss of earning capacity during marriage (Tex. Fam. Code §3.001(3)). Community property consists of all property, other than separate property, acquired by either spouse during marriage (Tex. Fam. Code §3.002).
Texas law creates a presumption regarding ownership: property possessed by either spouse during marriage, or upon dissolution of the marriage, is presumed to be community property (Tex. Fam. Code §3.003(a)). If a spouse asserts that an asset is separate property, the degree of proof necessary to establish that status is clear and convincing evidence (Tex. Fam. Code §3.003(b)). For example, if Carlos purchases a home before marrying Linda, that parcel begins as his separate property. If a dispute arises upon dissolution, Carlos must establish that separate status through clear and convincing evidence, otherwise Texas law presumes the house is community property (Tex. Fam. Code §3.003(a)-(b)).
Each spouse retains the sole management, control, and disposition of that spouse's separate property (Tex. Fam. Code §3.101). During marriage, each spouse also exercises sole management, control, and disposition of the community property that the spouse would have owned if single (Tex. Fam. Code §3.102(a)). If community property under one spouse's sole management is mixed with community property under the other spouse's sole management, the combined asset becomes subject to joint management unless both spouses provide otherwise by written power of attorney or other agreement (Tex. Fam. Code §3.102(b)). Except for community property subject to a spouse's sole management, community property is governed by the joint management, control, and disposition of both spouses unless an agreement or power of attorney provides otherwise (Tex. Fam. Code §3.102(c)). During marriage of parents of an unemancipated minor for whom no managing conservator is appointed, the minor's earnings are subject to the parents' joint management, control, and disposition, unless an agreement or judicial order states otherwise, subject to statutory exception (Tex. Fam. Code §3.103). Property held in a spouse's name, as shown by muniment, contract, deposit of funds, or other evidence of ownership, is presumed during marriage to be subject to that spouse's sole management, control, and disposition (Tex. Fam. Code §3.104(a)).
Common mistakes
- Assuming a spouse can unilaterally sell or encumber a homestead simply because the real estate was acquired prior to marriage as separate property (Tex. Fam. Code §5.001).
- Believing that an unrecorded deed is invalid between the actual parties who signed it (Tex. Prop. Code §13.001(b)).
- Confusing the filing deadlines for mechanics' liens: an original contractor on a residential project has until the 15th day of the third month, whereas on a non-residential project the deadline is the 15th day of the fourth month (Tex. Prop. Code §53.052(a)(1)-(2)).
- A mechanic's lien on a homestead requires a written contract executed by the owner and the person furnishing labor or materials before either is provided; both spouses must sign if the owner is married (Tex. Prop. Code §53.254(a)-(c)).
Key points
- Property possessed by either spouse during marriage or on its dissolution is presumed community property; establishing that it is separate property requires clear and convincing evidence (Tex. Fam. Code §3.003(a)-(b)).
- For a married couple's homestead, sale, conveyance, or encumbrance requires the other spouse's joinder whether the property is separate or community, except as provided in Chapter 5 or by other rules of law, including the specified judicial-incapacity exceptions (Tex. Fam. Code §5.001-§5.003).
- Homestead acreage limitations in Texas are set at no more than 10 contiguous acres for urban properties, and up to 100 acres for a single adult or 200 acres for a family for rural properties (Tex. Prop. Code §41.002(a)-(b)).
- Residence homestead tax exemptions include $3,000 for county taxes, $140,000 for school district taxes, and an additional $60,000 school exemption for individuals who are disabled or age 65 or older (Tex. Tax Code §11.13(a)-(c)).
- A formal attested will requires two credible witnesses at least 14 years of age, but a will written wholly in the testator's handwriting requires no subscribing witnesses (Tex. Estates Code §251.051-§251.052).
- An unrecorded deed or mortgage is void against subsequent purchasers for value without notice, but remains valid between the original parties and those with notice (Tex. Prop. Code §13.001(a)-(b)).
- To fix a mechanic's lien on a homestead, the owner and the person furnishing material or labor must execute a written contract before the material is furnished or labor performed, and the contract must be filed with the county clerk; if the owner is married, both spouses must sign it (Tex. Prop. Code §53.254(a)-(e)).
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Original lesson written for Real Estate Salesperson practice · updated October 30, 2026. Exam names are trademarks of their owners; tests.global is not affiliated with them.