The divorce process is arduous and time consuming, involving many details that never once came to your mind prior to the life-changing event. One of the biggest matters that comes up is splitting up property and who gets what. If you’re a Texas citizen facing the question of whether your spouse will be included in getting a portion of an inheritance you’ve received, then you’ll be glad to know the law is in your favor – with some caveats.

Community Property vs. Separate Property

Texas is one of the few states that is considered a “community property state”, which means that property acquired during marriage is usually divided evenly between spouses. Community property is defined as anything purchased with the combined income during marriage, like a house or a car. (By the way, it is important to know that “community property” also includes community debt.) In Texas, a gift or inheritance falls under the category of separate property: anything owned or acquired prior to marriage.

But what if you received an inheritance after you got married? Or what if you are presented a will during your marriage with only your name on it and no mention of your spouse? Is it split evenly between the two of you, or because it is in your name, do you receive it in full? Due to the fact inheritances fall under separate property, regardless of when you received it, Texas laws cannot override the terms listed on the will. It still belongs to you and only you.

Commingling: A Threat to Inheritances Everywhere

Inheritances can become a little tricky if you used any of the funds jointly. This is known as commingling and it can complicate the process of allocating the inheritance between the two parties involved. An example is if you deposited the inheritance in a joint bank account and decided to use it for marital expenses, like house repairs and paying off debts. Unfortunately, when this happens it means the inheritance loses its immunity, being considered marital property and no longer separate property.

Though this can complicate things, there are ways to redeem some of your inheritance as separate property through court. One way of doing this is by tracing your assets and figuring out the amount that first solely belonged to you prior to its commingling.

You can also safeguard separate property owned before your marriage by getting a prenuptial agreement prior to marriage. If you failed to get a prenup in advance, then here are a few things you can do while you’re married to protect your separate property:

  • keep your funds separate
  • keep any real estate separate
  • use non-marital funds for non-marital property

Proving Your Separate Property

If you have already commingled your inheritance, there are ways to prove to the court that it was initially separate property as long as you have clear and convincing evidence. You can do this by establishing that the inheritance belonged solely to you prior to your marriage. Important documentation proving this is required, like a copy of the will. A paper trail is important as it will show all of the withdrawals and deposits in your joint account, dictating whether your inheritance was used in marital matters.

Because of the nature of difficulty that can accompany a commingled inheritance, seeking an experienced family law attorney is a wise next step.

To avoid any confusion in terms of property ownership in the event of a divorce, it’s important to keep organized and complete records of property. Married couples can also agree in writing to designate certain property as community or separate to keep the lines of ownership from becoming blurred.