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Joseph W. McKnight

SEPARATE PROPERTY LAW. Separate property is that property which is solely owned by a spouse, and it is generally defined in the Constitution (Article XVI, section 15). Separate property includes property owned by a spouse before marriage or received during marriage by gift or inheritance or by a recovery for injury to a spouse except for loss of earning power. The income from separate property (unless representing a sale of capital, as in the case of mineral royalties and bonuses) is ordinarily shared with the owner's spouse as community property. These are principles of the law of Castile, maintained in Texas since the period of Spanish rule. Though unmarried adult men and women in Texas have always enjoyed full control of their property, Texas married women were long under significant restraints in dealing with their separate property. Prior to 1913 the management of the separate property of both the husband and wife was vested in the husband, but the wife's consent to disposition of her separate property was required. As a further protection to the married woman in making a disposition of her realty, it was required in 1846 that the transaction be explained to her and that she make a sworn acknowledgement of the transaction, in both instances out of the presence of her husband. As a consequence of legislative reform of 1913, the married woman acquired the management of her separate property, though her husband was required to join in conveyances of realty and transfers of securities. Full power of management of separate property of married women was enacted in 1963, and the requirement of her separate acknowledgment was repealed in 1967. A spouse has complete power to dispose of separate property by will, except that a surviving spouse cannot be deprived of the right to occupy a separate homestead for life. Separate property of a spouse is not subject to any liability incurred by the other spouse unless the other spouse acted as his or her agent in incurring liability. See also COMMUNITY PROPERTY LAW.

Joseph W. McKnight and William A. Reppy, Jr., Texas Matrimonial Property Law (Charlottesville, Virginia: Michie, 1983).

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The following, adapted from the Chicago Manual of Style, 15th edition, is the preferred citation for this article.

Handbook of Texas Online, Joseph W. McKnight, "SEPARATE PROPERTY LAW," accessed August 06, 2020, http://www.tshaonline.org/handbook/online/articles/mls01.

Uploaded on June 15, 2010. Published by the Texas State Historical Association.
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