In some jurisdictions, all property owned by either the husband or wife before marriage, and that acquired by either of them afterwards by means of gift, devise, or descent is considered as their separate property. Property acquired by either after marriage otherwise than by gift, devise, or descent is their common property[i].
In other words, the presumption is that all property acquired by either spouse during marriage is community property, except that which is acquired by gift, devise or descent[ii]. Simiarly, property possessed by either spouse during or on dissolution of marriage is presumed to be community property[iii].
Clear and convincing evidence is required to overcome that presumption and establish property as separate property[iv]. Money received as the result of a settlement agreement for personal injuries sustained by a spouse during the marriage is considered to be separate property[v]. However, the cause of action for personal injuries suffered by either spouse during marriage as well as any recovery constitutes community property.
However, if there is no clear and convincing evidence showing the recovery is solely for the personal injury of a particular spouse, the spouse will not overcome the presumption that all property received during marriage is community property[vi].
It is to be noted that not all personal injury damages are separate property. The community estate is entitled to any recovery for loss of earning capacity during marriage, for medical expenses incurred during marriage, and for other expenses associated with injury to the community estate. However, damages for mental pain and anguish are separate property[vii].
Likewise, recovery for personal injuries sustained by a spouse is the separate property of that spouse, including damages for disfigurement, physical pain and suffering in the past and in the future[viii]. Punitive damages are not compensatory damages due to a spouse’s personal injuries, but represent society’s sanctions against a tortfeasor’s inexcusable conduct and are community property[ix].
The meaning and extension of community differs in various jurisdictions. For example, in one jurisdiction, damages for personal injuries received by a married person are regarded as a community property, but an unliquidated claim or cause of action for personal injury damages is not a community property[x]. Likewise, in some jurisdictions, the right of a wife to recovery for personal injuries is not a separate property[xi]. On the other hand, if the husband recovers damages resulting from personal injuries suffered by him, the amount so recovered falls into the community and becomes a community asset[xii].
Genrally, damages for injury or the death of a minor child of the spouse are community property. However, the earnings and accumulations of a wife, and of her minor children living with her while she is living separate from her husband, are the separate property of the wife. Moreover, if a wife is separated from her husband and having custody of their children sues and recovers damages for her loss caused by the wrongful death of their child, such recovery is considered as the separate property of the wife[xiii].
[i] McDonald v. Stevenson, 245 S.W. 777 (Tex. Civ. App. 1922)
[ii] Hatcher v. Hatcher, 188 Ariz. 154 (Ariz. Ct. App. 1996)
[iii] Munoz v. Munoz, 2003 Tex. App. LEXIS 10693 (Tex. App. El Paso Dec. 19, 2003)
[iv] Licata v. Licata, 11 S.W.3d 269 (Tex. App. Houston 14th Dist. 1999)
[v] Slaton v. Slaton, 987 S.W.2d 180 (Tex. App. Houston 14th Dist. 1999)
[vi] Licata v. Licata, 11 S.W.3d 269 (Tex. App. Houston 14th Dist. 1999)
[viii] Munoz v. Munoz, 2003 Tex. App. LEXIS 10693 (Tex. App. El Paso Dec. 19, 2003)
[ix] Morris v. Morris, 685 So. 2d 673 (La.App. 3 Cir. Dec. 26, 1996)
[x] In re Marriage of Pinto, 28 Cal. App. 3d 86 (Cal. App. 1st Dist. 1972)
[xi] Graham v. Franco, 488 S.W.2d 390 (Tex. 1972)
[xii] McCoy v. Winn-Dixie Louisiana, Inc., 345 So. 2d 1175 (La. 1977)
[xiii] Christiana v. Rose, 100 Cal. App. 2d 46 (Cal. App. 1950)