Reimbursement Claims in a Texas Divorce — and How a Prenup Changes Them

Oct 8, 2026

A Texas court cannot divide your separate property. It can still order your separate estate to write the community a check. Family Code § 3.410 lets an agreement close that door — but only if the agreement says so.

Bustos Family Law PLLC | Austin, Texas

Clients who have absorbed the basic rule — separate property is not divisible — are often blindsided by reimbursement. It is how a spouse whose separate estate benefited from community money or effort ends up owing the community a substantial sum at divorce. In a recent Houston case the number was $225,499, and the parties had a signed marital property agreement.

What a reimbursement claim is

Family Code § 3.402(a) defines it: a claim “exists when one or both spouses use property of one marital estate to confer on the property of another marital estate a benefit which, if not repaid, would result in unjust enrichment to the benefited estate.” Section 3.401 identifies the three marital estates that can owe or be owed — the community estate and each spouse’s separate estate.

Reimbursement exists because Texas fixes property character at acquisition and will not disturb it. A house bought before marriage stays separate no matter how many community paychecks pay the note — as our own Third Court of Appeals confirmed in DeSpain v. DeSpain, No. 03-23-00348-CV (Tex. App.—Austin Nov. 22, 2024). Reimbursement is the equitable correction. Critically, under § 3.404(b), it “does not create an ownership interest in property, but does create a claim against the property of the benefited estate,” maturing on dissolution of the marriage or the death of either spouse. The other spouse does not get a piece of your house. They get a claim.

The three ways a benefit is conferred

Section 3.402(c) lists them, and each has its own measure.

  1. Paying a debt, liability, or expense that “in equity and good conscience should have been paid from the benefited estate’s property.” The community paying the mortgage on one spouse’s separate house is the classic example.
  2. Improvements to the benefited estate’s real property that “resulted in an enhancement in the value” of it. The Texas Supreme Court set that measure in Anderson v. Gilliland, 684 S.W.2d 673 (Tex. 1985): reimbursement for improvements “is to be measured by the enhancement in value to the benefited estate,” not by what the work cost. In Marin v. Marin, No. 03-22-00013-CV (Tex. App.—Austin Apr. 5, 2023), the Austin court affirmed $137,641 to the community for enclosing a screened porch on the husband’s separate-property home — measured as the difference in value with and without the improvement.
  3. Time, toil, talent, or effort devoted to enhancing separate property “beyond that which was reasonably necessary to manage and preserve” it. Jensen v. Jensen, 665 S.W.2d 107 (Tex. 1984), supplies the formula: the value of that effort less “the remuneration received for that time and effort in the form of salary, bonus, dividends and other fringe benefits.” The founder who pays herself below market while building the company is the one exposed — see Prenups for Business Owners and Blended Families in Texas.

In every category, the benefit is valued as of the commencement of trial.

What is not reimbursable

Section 3.409 is short and worth knowing by heart. A court “may not recognize a marital estate’s claim for reimbursement for” the payment of child support, alimony, or spousal maintenance; the living expenses of a spouse or child of a spouse; contributions of property of a nominal value; the payment of a liability of a nominal amount; or a student loan owed by a spouse. That last item catches people — years of community income retiring one spouse’s separate student debt generates no claim at all.

It is discretionary, and you have to ask for it

Reimbursement is not automatic. In Vallone v. Vallone, 644 S.W.2d 455 (Tex. 1982), the Texas Supreme Court held plainly that “[r]eimbursement is not available as a matter of law, but lies within the discretion of the court.” Section 7.007 directs the court to apply equitable principles both to decide whether to recognize the claim “after taking into account all the relative circumstances of the spouses” and to divide it in a manner that is just and right.

It also has to be pleaded. Vallone held that “[i]n the absence of pleadings either specifically for or referrable to reimbursement premised on uncompensated time, talent or labor, such recovery is waived.” A claim nobody pleads is a claim nobody gets.

Two more mechanics matter. Claims can be offset against each other under § 3.402(f)–(h), with the burden on the party seeking the offset — but a separate estate “may not claim an offset for use and enjoyment of a primary or secondary residence” against community contributions to it. And under § 3.406(a), a court may impose an equitable lien on the benefited estate’s property to secure the claim.

What a prenup or postnup can do about it

This is the part most articles miss. Section 3.410 provides that a premarital or marital property agreement “that satisfies the requirements of Chapter 4 is effective to waive, release, assign, or partition a claim for economic contribution, reimbursement, or both.” Reimbursement is squarely waivable by agreement.

But the agreement has to actually do it. In McCartney v. McCartney, No. 14-24-00310-CV (Tex. App.—Houston [14th Dist.] Aug. 5, 2025), spouses signed a 2020 partition agreement converting two properties to the wife’s separate property. The husband kept paying the mortgages with community funds. The trial court ordered her separate estate to reimburse the community $225,499, and the court of appeals affirmed, holding that “[t]o release a claim effectively, the releasing instrument must ‘mention’ the claim to be released” — and that the agreement’s provisions “do not mention, much less explicitly release, reimbursement claims of any estate.”

The lesson is precise: characterizing property as separate does not waive reimbursement. Those are two different jobs, and a well-drafted agreement does both. Note too that a release running between the spouses’ separate estates does not release the community estate’s claim — the estates are distinct under § 3.401.

Language that has worked appears in Fischer-Stoker v. Stoker, No. 01-04-00262-CV (Tex. App.—Houston [1st Dist.] July 14, 2005), where the premarital agreement provided that “[a]ny payment or contributions by one of us to satisfy the debts or otherwise benefit the separate estate of the other shall not give rise to a claim for reimbursement or an interest in any property purchased by those payments unless we otherwise agree in writing.” The court enforced it.

One further wrinkle from the 2023 legislative session: § 3.411 now provides that the subchapter’s remedies “are not exclusive and are in addition to any other remedy provided by law.” A waiver drafted narrowly against the statute may not reach every theory, which is an argument for drafting the release broadly rather than by section number.

How we handle it

In agreements we draft, reimbursement gets its own clause rather than riding along with characterization. Depending on what the couple wants, that clause either waives claims expressly — naming reimbursement, identifying which estates are releasing which, and covering debt payments, improvements, and uncompensated effort separately — or, where a full waiver is not fair to both sides, sets a formula so the claim is calculated rather than litigated. Couples already married can accomplish the same thing through a partition or exchange agreement under § 4.102.

If you are negotiating an agreement, or facing a divorce where one estate clearly funded the other, we would be glad to talk through where you stand. Schedule a consultation with Bustos Family Law PLLC.

Authorities Cited in This Post

Every link below was verified to resolve to the cited authority. Statutory links go to public.law; case links go to Justia, FindLaw, CourtListener, or the Texas courts website.

This article is provided for general educational purposes by Bustos Family Law PLLC and is not legal advice. Reading it does not create an attorney-client relationship. Texas marital property law is fact-specific, and statutes and case law change. Please consult a licensed Texas attorney about your own circumstances.