By Earl N Jackson
Board Certified Texas Board of Legal Specialization
Separate property –
- property you owned at the time you married;
- property you inherited;
- property that was gifted to you; and
- compensation for personal injuries.
Everybody owns separate property – at the very least, a spouse’s wedding ring is his or her separate property by gift. I once received some kind of “nasty-graham” from an opposing attorney that basically said – “they don’t own any separate property” with exclamation point. Of course they do – the baseball card collection from childhood is separate property, the shotgun given by grandpa is separate property, the house that you bought prior to marriage is separate property, that portion of your 401K that you earned prior to marriage is separate property, the Exxon stock you inherited from Grandpa is your separate property, the oil royalties from your separate property mineral interests remains your separate property, etc. etc. etc. You just have to prove it.
All property owned by the parties while married or obtained through marriage is presumed to be community property. To establish the separate property characteristic property, it has to be proved and this is usually done through tracing.
Tracing: “Tracing” is about finding the separate property. It is about proof. Property purchased or exchanged for separate property is and remains separate property. Mutations and changes in the form of the property do not affect its character as separate or community. However, the spouse must clearly trace and identify the property.
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- Example: If husband owns separate property land which he then sells in order to buy AT&T stock, then that stock is separate property. The difficulty arises, however, because the burden of proof is placed upon that person claiming the separate property. This person must build a chain by documents and/or other extrinsic evidence establishing the separate property characteristic. He or she must clearly identify the separate property. Otherwise, the community property presumption will prevail.
There are a number of tools available to trace, or to pull out, separate property from the community estate