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Specialty tag(s): Complex Property, Pre-Divorce Guidance, High Net Worth Divorce, Divorce

How is Inherited Property Handled in a Divorce?

Ryan R. Bauerle | March 8, 2024

The division of assets is an understandably common cause for concern during divorce. Many divorcing couples worry about what they will be left with when the proceedings are over; this often leads to anxiety over the future. When it comes to inherited property and divorce, the situation can be even more confusing, as many are unaware of the laws concerning inherited property in Texas.

Is an Inheritance Community Property in Texas?

The answer is no because a Court cannot divest someone of their separate property.  Texas is a community property state, meaning that assets acquired during the marriage are presumed “community property”, and therefore subject to division during the divorce.  However, the Texas Family Code specifically provides that anything acquired by “gift, devise, or descent” is a spouse’s separate property. This is true whether the property was acquired before or during the marriage. It’s important to note that there are circumstances whereby you can, purposefully or inadvertently, convert your inherited separate property into community property. Understanding what circumstances might risk your ability to retain your inheritance can help you make the best decisions regarding your specific situation.

When Does an Inheritance Become Community Property in Texas?

The Court could potentially divide inherited property in the divorce in a few different situations:

• By Agreement:  Often called a “conversion agreement”, this is the opposite of a premarital agreement. Although rare, sometimes spouses agree to convert their separate property to community property.  Often this is done to effectuate some sort of tax relief. 
• You Commingled Your Inheritance With Other Assets: If inherited funds are deposited into a joint bank account and used for marital expenses or combined with other marital assets, the separate property is so hopelessly commingled that they cannot be traced. The inheritance may no longer be considered separate property because you cannot satisfy your burden of proof to classify the funds as inherited.
• Separate Property is Titled in Another Spouse’s Name:  If one spouse owns separate property, and titles it in their spouse’s name (such as adding a spouse’s name to a title of a separate property residence) a presumption arises that a gift was intended.
• In an LLC: Many spouses inadvertently divest themselves of separate property by doing something they think is going to protect them.  For example, presume you own a piece of real estate that is your inherited separate property. and You decide you are going to rent it out, set up a company, and put that real estate in a limited liability company (LLC). You may even get advice from a lawyer telling you that that’s a good idea. As part of that process, you deed the real estate into the LLC. The problem lies in that, in this example and in a divorce, you no longer own that piece of real estate. What you own at that point is an interest in an LLC that you acquired during marriage. That LLC is presumed to be community, not separate, property. So, even though you owned a piece of real property that you clearly could prove was your separate property, by putting it into the LLC, you likely lost your right to claim that property as your separate property.

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Get Help From a Skilled Divorce Attorney to Protect Your Future

Dealing with inherited property in a divorce can bring an extra layer of complexity to the process, requiring a deep understanding of Texas family law. At Goranson Bain Ausley, our team of experienced divorce attorneys is well-equipped to help you protect your interests and the equitable division of property. If you are facing a divorce involving inherited property, contact us today to discuss your case and get help finding the best path forward.