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Inheritance and Divorce

The Torres Law Firm  Oct. 17, 2023

An inheritance can provide a financial boost and open new opportunities. However, when you inherit a significant amount of money or property, you may catch yourself thinking, “Do I have to share my inheritance with my spouse if we get a divorce?” The question of inheritance and divorce is a very nuanced one as there is a number of factors that need to be considered.  

At The Torres Law Firm, we understand the complexities of divorce cases involving inheritance. Our divorce attorneys work diligently to help our clients achieve the best possible outcome. If you inherited assets during your divorce, The Torres Attorneys can help you understand whether or not you can keep your inheritance in a divorce.  

If your spouse inherited any assets and you wonder if you are entitled to their inheritance, we can help review your situation and explain your rights. The Torres Attorneys provide legal representation to clients in Corpus Christi, Texas, and the surrounding areas, including Fort Worth, Dallas, and San Antonio.  

Does All Property Get Divided at the Time of Divorce?  

In Texas, all of the money earned and assets acquired by spouses during the marriage are considered community property, though inheritance is an exception. By default, everything the spouses acquire during the marriage will be classified as “community property” for the purposes of asset distribution, unless a spouse can prove that a particular asset is their separate property.  

Under the law in Texas, separate property is:  

  • Property owned by either spouse before the marriage 

  • Assets acquired by either spouse during the marriage as inheritance or gift 

  • Any money acquired by either spouse through a personal injury settlement during the marriage 

Although Texas law generally considers inheritance to be separate property, it can become community property subject to distribution under certain circumstances.  

When Does Inheritance Turn Into Marital Property?  

The most common scenario in which inheritance can become marital (community) property in Texas is through commingling. The term “commingling” refers to a situation when a spouse’s separate property—be it an inheritance or an asset owned before the marriage—is mixed with community property during the course of the marriage.  

Example. Let’s say that a spouse inherits a house worth $200,000 from their late parent. That spouse decides to sell the property and deposit the proceeds into a jointly-owned checking account with their spouse. Both spouses have access to the account and use the money to pay for housing, utilities, groceries, and other expenses. Since both spouses use the checking account and the money is used to benefit both spouses, then the inheritance—or what’s left of it—will be considered “commingled” with the couple’s community property. Similarly, if the proceeds are used to pay off a joint mortgage or other types of joint debt, or purchase a jointly held property, the inheritance will generally turn into community property.  

Avoid Commingling & Get a Prenuptial Agreement 

Since mixing an inheritance—or any other kind of separate property, for that matter—with community property will turn the former into community property subject to division between the spouses at the time of divorce, it is important to avoid commingling at all costs. This can be done by holding an inheritance separate from jointly-held accounts and in your name only.  

Another effective way to keep your inheritance separate from community property is to create a prenuptial or postnuptial agreement. Prenuptial agreements (prenups) are more appropriate before the marriage (i.e., you receive an inheritance and then intend to get married), while postnuptial agreements (postnups) are more appropriate when you are already married. Drafting a prenup or postnup may require legal assistance from an attorney to ensure that the issue of inheritance is addressed explicitly and properly.  

Get the Guidance You Need From The Torres Attorneys 

If you inherited money or assets during the marriage and are considering a divorce (or are in the process of one), you do not want to leave your inheritance to chance. The Torres Attorneys can provide you with the guidance you need to ensure that your inheritance remains solely yours. Reach out to our attorneys today to schedule a case evaluation and discuss your options.