Joseph W. McKnight was a Professor of Law at Southern Methodist School of Law for sixty years. During that period, students attending the law school were fortunate to have him as a professor. He made historic contributions to scholarship in legal history authoring over 100 publications. He received degrees from Oxford University and Columbia University. Among his subjects were English Common Law, Roman Law, and Texas Law. This article continues, in part, the summary of an article he wrote for the Texas State Historical Association. This article concentrates on the ownership of community and separate property.

When Texas separated from Mexico (which used Spanish Law), the Republic of Texas adopted the law of England (common law) in preference of that of Spanish law. However, the Republic of Texas did not make a wholesale adoption of English (common) law. The Republic of Texas decided that Spanish law would continue to apply to land titles, water rights, and family relationships.

The most significant area of Spanish law remaining intact was that dealing with family relationships. This meant that Texas would use the Spanish principles of community property, separate property, and creditor protection.

Texas divides property into two types: community property and separate property. In order to own community property, there must be a valid marital relationship. In Texas, any property that a person acquires prior to marriage is separate property. Any property acquired by a spouse during marriage by gift or inheritance is separate property. Any property acquired by a spouse during marriage from the proceeds of separate property is separate property. Any property that is acquired by a spouse after marriage is presumed to be community property, but this presumption may be overcome by “clear and convincing” evidence.

Texas recognizes two categories of community property: general and special. Special community property is that “property which the spouse would have owned, if single, including personal earnings, revenue from separate property, recoveries from personal injuries, and the increase and mutations of, and the revenue from, all property subject to the spouse’s sole management, control and disposition.”

General community property is marital property that does not fall within the definition provided above. The reader may want to study that definition because there is an important reason for distinguishing between general community property and special community property. The reason has to do with “control.” Which spouse has the right to manage community property that is owned one-half by each spouse?

General community property is subject to the joint management, control and disposition of both spouses unless both spouses execute a written agreement to the contrary. Special community property is subject to the sole management, control and disposition of the spouse who is deemed an owner of the special community property.

To be continued.

Banker Phares is a practicing attorney and founding member of the Estate Planning and Probate Law certification by the Texas Board of Legal Specialization. He is the John and Karen Mast Professor at SFA and teaches in the Department of Economics and Finance.

Banker Phares is a practicing attorney and founding member of the Estate Planning and Probate Law certification by the Texas Board of Legal Specialization. He is the John and Karen Mast Professor at SFA and teaches in the Department of Economics and Finance.

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