If you are thinking about a divorce and have received an inheritance, you may be wondering, "what happens to my inheritance in a Texas Divorce?" Texas is a community property state, which means that anything acquired during a marriage that isn’t considered separate property is subject to a “just and right” division between spouses in a divorce. The good news is separate property in the State of Texas is all property, both real and personal, of a spouse owned before marriage, as well as gifts given to only one spouse and inheritances. Therefore, if you’ve received an inheritance before or during your marriage, that inheritance is considered separate property.
While separate properties will not be subject to property division during a divorce, they must, however, be proven by clear and convincing evidence - which is a high burden to undertake.
Due to this high burden of clear and convincing evidence, a few things that can make a separate property claim difficult to prove, include:
- Adding your spouse’s name to any separate property, such as a deed, title or any bank account.
- Depositing marital funds into separate property accounts
- Using joint funds (marital funds) to support an inheritance, such as paying taxes on an inherited property or making repairs on an inherited property.
- Gifting a family heirloom to your spouse.
- Inheritance willed to both spouses
How Can I Protect My Inheritance?
Consider a Postnuptial Agreement.
If you receive an inheritance during the course of your marriage, an option to consider to protect your separate property is by establishing a postmarital or postnuptial agreement. A postmarital agreement is a written agreement executed after a couple gets married to settle family matters, assets and other financial concerns during the marriage, or in separation, divorce or death.
Do Not Commingle Funds and Keep Good Records.
If you receive an inheritance in monetary form, ensure that all funds are kept in a separate account, and do not commingle funds with your spouse. If the inheritance is a real property, keep receipt of improvements, payments made, tax records, and in general a good accounting log. If you do any improvements to separate property, keep receipts and be able to prove that non-joint funds were used to make the improvements. Keep a copy of any last will and testament, or any Court order relating to your inheritance.
Put simply, keep any and all documentation to prove by clear and convincing evidence that your separate property claim is indeed your separate property.
Property division can be one of the most difficult and contentious parts of a divorce. The Houston divorce attorneys at Hendershot, Martin, Cannon, & Hisey are highly experienced in property division and are dedicated to getting you the results you want. We know what documents to look for, when to call in a financial expert for tracing, and how to properly present the information so it’s easily understandable to the judge and jury, even in the most complex of cases, such as those involving co-mingled property.
Tell us about your case – and we’ll tell you how we can help. Call 713-909-7323 or complete an online form to set up an appointment with an experienced Houston divorce attorney.