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Is Texas a Community Property State? (2026)

Updated October 8, 2026. Quick answer: Yes. Texas is a community property state. Family Code section 3.002 says “Community property consists of the property, other than separate property”, acquired by either spouse during marriage. The IRS lists nine community property states.

Texas community property at a glance

ItemWhat the documents say
RegimeCommunity property
At divorceThe court divides the estate in a manner it deems just and right (Family Code section 7.001), not by a fixed equal split
At a spouse’s deathIntestate: the community estate passes to the survivor if all descendants are also the survivor’s; otherwise the deceased spouse’s one-half goes to the descendants (Estates Code section 201.003)
Federal basis at the first deathBoth halves of community property can take a new basis at the first death (26 U.S.C. 1014(b)(6))
SourceTexas Legislature (Texas Constitution and Statutes site); IRS Publications 551 and 555; 26 U.S.C. 1014

What the Texas statutes say

Chapter 3 of the Family Code separates the two kinds of property. Section 3.002 defines community property and section 3.003 sets the presumption: property “possessed by either spouse during or on dissolution of marriage” is presumed to be community property.

A couple who moved in is covered at divorce. Section 7.002 reaches “property that was acquired by either spouse while domiciled in another state” when it would have been community property had it been acquired in Texas.

At divorce in Texas

Texas does not split community property by a fixed formula. Family Code section 7.001 has the court order a division of the estate of the parties “in a manner that the court deems just and right”.

At a spouse’s death in Texas

The Estates Code covers a spouse who dies without a will. Under section 201.003, when all of the deceased spouse’s children and descendants are also descendants of the survivor, the community estate passes to the survivor. Otherwise the statute gives “the deceased spouse’s undivided one-half interest in the community estate” to the deceased spouse’s descendants.

What it does to basis when the first spouse dies

The federal basis rule is why the label matters to a couple. IRS Publication 551 says that when a spouse dies in a community property state, the total value of the community property “generally becomes the basis of the entire property”. The rule applies only if at least half the value of the community property interest “must be includible in the decedent’s gross estate”. The statute behind it, 26 U.S.C. 1014(b)(6), covers “property which represents the surviving spouse’s one-half share of community property”.

Computed illustration, not tax advice: suppose a Texas couple paid $100,000 for shares worth $400,000 when one spouse dies, and all of it is community property with at least half included in the decedent’s gross estate. The survivor’s basis in the whole becomes $400,000. A sale at that value shows no gain. Held instead as a qualified joint interest in a common law state, only one half is included in the estate, and the survivor’s basis is the total of two halves: $200,000 for the half that steps up plus $50,000 as the cost of the survivor’s own half, which makes $250,000. A sale at $400,000 would then show a gain of $150,000. CMG’s community property step-up page and common law step-up page go through the same difference.

What the documents do not say

  • The documents read cover intestacy only; what a will can do with the decedent’s one-half is not quoted here.

Common mistakes

  • Expecting an equal split at divorce because the property is community property; the Family Code standard is just and right.
  • Assuming the answer in this state settles it for a couple who move; the rules depend on the state where the spouses are domiciled and, for property in a trust, on the trust.

Related: community property states by state, how both halves step up in a community property state, Texas retirement taxes, and Texas probate cost.

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Sources

Sources: the primary documents linked above, read on October 8, 2026. General information, not tax advice. Your own facts decide the outcome, and a tax professional or the state agency itself is the right place to confirm anything consequential.

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