Is Inheritance Split in a Texas Divorce?

By Cindy Chung

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Couples considering divorce in Texas should learn about the state's marital property laws and the court procedures for division of property upon divorce. If one spouse has received an inheritance, she may worry that a Texas court would split the inherited property with her spouse. Texas law, however, generally treats inheritances as a spouse's separate property unless certain circumstances exist. Each spouse may wish to consult with a Texas lawyer about property rights during divorce.

Texas Marital Property Laws

Texas follows the community property system when identifying and dividing a couple's marital property. Texas family law courts presume that property and debts accumulated during a couple's marriage belong to both spouses as community property. If the couple divorces, each spouse can try to rebut the presumption of community property by submitting clear and convincing evidence that the property should be classified as separate.

Spouse's Inheritance as Separate Property

In contrast to community property owned by both spouses, each spouse can also own separate property, which a spouse acquires before marriage or during marriage through a gift or inheritance. Texas courts will generally presume that an inheritance is one spouse's separate property, unless the other spouse can prove otherwise. Spouses may consider a premarital agreement or marital property agreement if one spouse receives an inheritance and has concerns about keeping the inheritance as separate from the couple's community property.

Division of Property During Divorce

During divorce, the spouses must decide how to divide their property. If they cannot agree on a marital settlement, Texas law allows the court to divide their community property and debts, as long as the division is "just and right." The judge usually considers many factors, including whether the couple has children, each spouse's separate assets and each spouse's fault in causing the divorce. However, the court does not divide separate property; each spouse retains his separate property.

Commingling Issue

If one spouse receives separate property through inheritance, a legal issue may arise if the spouse commingles the inheritance with marital assets. "Commingling" means that the couple has mixed community property and separate property. If the couple divorces, a spouse may need to prove that the commingled inheritance should retain its character as separate property through tracing or accounting. If the spouse cannot adequately identify the separate inherited assets, Texas law may treat the inheritance as community property, which the court could potentially split between the spouses.