Article XVI, Section 15 of the Texas Constitution

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As amended November 2, 1999:

All property, both real and personal, of a spouse owned or claimed before marriage, and that acquired afterward by gift, devise or descent, shall be the separate property of that spouse; and laws shall be passed more clearly defining the rights of the spouses, in relation to separate and community property; provided that persons about to marry and spouses, without the intention to defraud pre-existing creditors, may by written instrument from time to time partition between themselves all or part of their property, then existing or to be acquired, or exchange between themselves the community interest of one spouse or future spouse in any property for the community interest of the other spouse or future spouse in other community property then existing or to be acquired, whereupon the portion or interest set aside to each spouse shall be and constitute a part of the separate property and estate of such spouse or future spouse; spouses also may from time to time, by written instrument, agree between themselves that the income or property from all or part of the separate property then owned or which thereafter might be acquired by only one of them, shall be the separate property of that spouse; if one spouse makes a gift of property to the other that gift is presumed to include all the income or property which might arise from that gift of property; spouses may agree in writing that all or part of their community property becomes the property of the surviving spouse on the death of a spouse; and spouses may agree in writing that all or part of the separate property owned by either or both of them shall be the spouses' community property.

Editor Comments

Texas has a community system of marital property rights derived from Spanish law. In contrast, most states have a common-law system of marital property rights derived from English law.

This section of the state constitution governs the marital property rights of Texas residents. Certain statutes (e.g., Chapters 3 and 4 of the Texas Family Code) also govern those rights.

In general, all property acquired during a marriage is community property unless proven by clear and convincing evidence to be separate property. Separate property includes property owned by a spouse before the marriage or acquired by the spouse by gift, inheritance, or as money damages recovered from a personal injury case. Income earned during the marriage from separate property is normally considered community property.

As adopted in 1876, this section read: "All property, both real and personal, of the wife, owned or claimed by her before marriage, and that acquired afterward by gift, devise or descent, shall be her separate property; and laws shall be passed more clearly defining the rights of the wife, in relation as well to her separate property as that held in common with her husband. Laws shall also be passed providing for the registration of the wife's separate property."

The original Article XVI, Section 15 expressly defined the wife's separate property and mandated that certain laws be passed. By implication, it adopted the community property system that had been in place since Texas was part of Mexico.

This section has been amended four times. As revised, its first clause provides a constitutional definition of separate property that is applicable to both spouses. However, the definition is general and what specifically constitutes "separate property" has been the subject of numerous court decisions. The second clause mandates that certain laws be passed. The remaining clauses, most adopted in response to unfavorable Texas Supreme Court decisions, set forth various rules regarding the state's community property system.

Whether property is characterized as separate or community is important in many areas of law, including family, probate and bankruptcy. Unfortunately, Texas law regarding that basic question is often hard to understand and apply.

Historically, this section and the other laws governing marital property rights in Texas have been heavily litigated. However, the latest amendment to Article XVI, Section 15 has not been construed by the Texas Supreme Court.

—Attorney Steve Smith

Recent Decisions

  • Holmes v. Beatty, 290 S.W.3d 852, 855 (Tex. 2009) (citations omitted) ("We reaffirmed that the only way for a couple to create survivorship rights was to partition their community property into separate property, then execute survivorship agreements for that separate property. This process came to be known among practitioners as the 'Texas Two-Step.' Subsequent . . . . In 1987, the Legislature passed, and the Texas voters approved, a constitutional amendment authorizing rights of survivorship in community property. The amendment provided that 'spouses may agree in writing that all or part of their community property becomes the property of the surviving spouse on the death of a spouse.'")

Historic Decisions

  • Beck v. Beck, 814 S.W.2d 745, 749 (Tex. 1991) ("Because Lillian is a member of the class intended to be protected by our earlier community property laws, the legislature and the citizens of Texas may, and did, validate premarital agreements such as this. The legislature and citizens could validate this premarital agreement . . . . We hold that the 1980 amendment to article XVI, section 15, of the Texas Constitution demonstrates an intention on the part of the legislature and the people of Texas to not only authorize future premarital agreements, but to impliedly validate section 5.41 of the Texas Family Code and all premarital agreements entered into before 1980 pursuant to that statute.")
  • Cameron v. Cameron, 641 S.W.2d 210, 216 (Tex. 1982) (citations omitted) ("Texas property law contains a rich tradition of respect for the constitutional, Tex. Const. art. XVI, § 15, and statutory, Tex.Fam.Code Ann. § 5.01, boundaries between community and separate property. Our state's courts have steadfastly guarded these estates from, and have been alert to rectify fraudulent encroachment by one estate upon the other. The integrity of each estate has been protected by developed principles of law and accounting by which funds or assets may be traced. The law of reimbursement between separate and community estates of spouses at divorce has been recognized since an early date.")
  • Eggemeyer v. Eggemeyer, 554 S.W.2d 137, 142 (Tex. 1977) ("Trial courts have a broad latitude in the division of the marital community property, but that discretion does not extend to a taking of the fee to the separate property of the one and its donation to the other. This is the construction which this court has previously given Rice and Hedtke. . . . The correct rule, as stated by the court of civil appeals in this case, is that a parent owes a duty to support his child and that duty can be enforced against the parent and his separate property. A receiver or trustee may be named to assure compliance with the order for child support. The fee to the separate property, however, may not be divested.")
  • Graham v. Franco, 488 S.W.2d 390, 394 (Tex. 1972) (citations omitted) ("It was also recognized at the time of the adoption of our various constitutions including that of 1876, that as to property which was exchanged for other property, and damages which were awarded to the separate property of a spouse, the recovery would be separate in character. Under this line of authorities . . . . So, the reasoning continues, if the arm of the wife is cut off, the recovery for the loss because of disfigurement and for the attendant pain and suffering should go to the wife. The reasoning is that the recovery is a replacement, in so far as practicable, and not the 'acquisition' of an asset by the community estate.")
  • Williams v. McKnight, 402 S.W.2d 505, 508 (Tex. 1966) ("The amendment attempts to authorize spouses to create a joint estate with rights of survivorship 'out of their community property.' In Hilley, we stated the reasons that this result could not constitutionally be accomplished, and those reasons are as valid after the amendment as they were before. Constitutional limitations are as binding upon the Legislature as they are upon the Judiciary. . . . Moreover, it is a very old principle of law that the husband and wife cannot, by mere agreement, partition and transfer their community property to each other and effect a change of the class of the estate which the Constitution fixes upon the property.")
  • King v. Bruce, 201 S.W.2d 803, 808 (Tex. 1947) ("Movables held by the spouses in community at the time the New York dealings were had continued to be community when taken into that state and subjected to the dealings there had pursuant to the contract of the parties made there. Not only were the Bruces citizens and domiciliaries of Texas when the . . . . Under these facts the dealings with the property in New York in no wise affected its character as property so far as the law of this state is concerned. The 'segregation' accomplished nothing toward bringing about the declared purpose of Mr. and Mrs. Bruce. The law of Texas remained applicable regardless of the dealings of the parties.")
  • Arnold v. Leonard, 273 S.W. 799, 801 (Tex. 1925) (citations omitted) ("Whatever the language of section 19 of article 7 meant in the Constitution of 1845, that language has the same signification in section 15 of article 16 of the Constitution of 1876. The plain and obvious import of the language of the Constitution is to prescribe a test by which to determine when an acquest by the wife becomes a portion of the wife's separate estate. The test during coverture relates to the method by which the property is acquired. If the method be by gift, . . . . If the method of acquiring during marriage be different, then the property falls without the class of separate estate of the wife, as fixed by the Constitution.")
  • Dickson v. Strickland, 265 S.W. 1012, 1022 (Tex. 1924) ("It was because the founders of the Republic recognized the greater justice of the modern civil law, on the subject of marital rights, which came to Mexico through Spain, that when Texas came to adopt the common law, it was enacted as a part of the act for its adoption that the marital rights of husband and wife should be governed by regulations entirely at variance with the common-law principles on which reliance must be placed to deprive . . . . Again, it is said in another opinion of Chief Justice Hemphill: 'But the common law is not and never has been in force in this state on the subject of marital rights.' Bradshaw v. Mayfield, 18 Tex. 21.")
  • De Blane v. Hugh Lynch & Co., 23 Tex. 25, 28-29 (1859) ("The principle which lies at the foundation of the whole system of community property is, that whatever is acquired by the joint efforts of the husband and wife, shall be their common property. . . . The law, therefore, conclusively presumes that whatever is acquired, except by gift, devise or descent, or by the exchange of one kind of property for another kind, is acquired by their mutual industry. If a crop is made by the labor of the wife's slaves on the wife's land, it is community property, because the law presumes that the husband's skill or care contributed to its production; or, that he, in some other way, contributed to the common acquisitions.")

Library Resources

Online Resources

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