Most people don’t realize the technicality of gift-giving between spouses, or to spouses, especially with regard to real property. Take the following examples:
1. Spouse A owns a house before marriage, so it is Spouse A’s separate property. Spouse A deeds the house to Spouse B. Here, the deed is presumed a gift to Spouse B, and the house is believed to be wholly Spouse B’s separate property.
2. Spouse A owns a house before marriage, so it is Spouse A’s separate property. Spouse A deeds the house to “Spouse A and Spouse B as community.” Here, the deed is still a gift and the house is not community property. Instead, the house is still separate property, with each spouse holding a one-half separate interest. Texas law requires more than a deed (as described) to convert the character of property.
3. Spouse A and Spouse B purchase a house together during their marriage, so it is community property. Spouse A gives Spouse B a deed that names only Spouse B as owner of the house. Here, the deed is still believed to be a gift, and the house is now wholly Spouse B’s separate property.
4. Spouse A purchases a house using separate funds, but puts the title in the name of Spouse A and Spouse B. Here, the deed is again presumed as a gift, and each spouse has an undivided one-half interest that is each spouse’s separate property.
So what about other gifts? Examples:
1. Wedding gifts: Gifts given to the “happy couple” are considered a gift given to both people, and each spouse holds an undivided one-half interest in that gift. If the gift specifically names the spouse receiving the gift, he or she may be able to show that it is 100% his or her separate property; however, this may require the testimony of the person giving the gift to show true intent.
2. Christmas or birthday gifts: An item of a “personal nature” given to one spouse to another is presumed to be separate property, even if purchased with community funds. This would include items like jewelry. A more substantial item, like a car, would not automatically be considered separate property, as Texas law requires something in writing to show the spouse’s true intent in giving the gift.
It can be confusing, and the rules of property are strict. If you are considering making a gift to a spouse, or if you are trying to determine the characterization of an old gift, call Yale Law at 940-222-8025.