News
 
Varghese Summersett
2
2
2
2

Is an Inheritance Community Property in Texas?

In the Lone Star State, property division during a divorce can be complex and often contentious, particularly when inheritance is involved. This comprehensive guide delves deep into what happens with an inheritance in divorce. According to Texas Family Code 3.001, an inheritance is a gift and is generally treated as separate property.

The stakes are high. Hire the best lawyers.

Understanding Separate vs. Marital Property in Texas

Texas, like several other states, follows the community property system. This system is based on the principle that property acquired during a marriage belongs equally to both spouses. However, this seemingly straightforward concept becomes more nuanced when we consider the various types of property that can be acquired before and during a marriage.

Community Property: The General Rule

In Texas, the default assumption is that all property acquired during a marriage is community property. This means that, regardless of which spouse earned the income or made the purchase, the property is considered to be owned equally by both parties. Examples of community property typically include:

  • Salaries and wages earned during the marriage
  • Real estate purchased with marital funds
  • Businesses started or expanded during the marriage
  • Retirement accounts and pensions accrued during the marriage
  • Vehicles, furniture, and other personal property acquired during the marriage

The rationale behind this system is that marriage is viewed as an economic partnership, with both spouses contributing to the household in various ways, whether through income, homemaking, or child-rearing.

Separate Property: The Exceptions

While community property is the default, Texas law recognizes certain exceptions to this rule. Separate property is owned solely by one spouse and is not subject to division during a divorce. The Texas Family Code Section 3.001 outlines three primary categories of separate property:

  • Property owned before marriage: Any assets that a spouse owned prior to entering into the marriage remain their separate property. This could include real estate, vehicles, investments, or personal belongings.
  • Gifts and inheritances: Property acquired by one spouse during the marriage through gift, devise, or descent is considered separate property. This category includes inheritances, which we will explore in more detail later.
  • Recovery for personal injuries: Any compensation received for personal injuries sustained by a spouse during the marriage is separate property, with one notable exception – recovery for loss of earning capacity during the marriage is considered community property.

Understanding these distinctions is crucial, as it forms the foundation for how inheritance is treated under Texas law.

helping people through difficult times

Complexities of Inheritance in Divorce

Inheritance occupies a unique position in Texas property law. While it’s generally classified as separate property, various factors can complicate this classification, potentially transforming an inheritance into community property or creating situations where the lines between separate and community property become blurred.

The General Rule: Inheritance as Separate Property

Under Texas law, an inheritance received by one spouse, whether before or during the marriage, is typically classified as separate property. This means that if you receive an inheritance from a deceased relative, it should remain your sole property even in the event of a divorce.

The rationale behind this rule is that an inheritance is typically intended for a specific individual, not for the marital unit as a whole. It’s viewed as a personal gift from the deceased to the heir, separate from the economic partnership of marriage.

Exceptions and Complications

However, the classification of inheritance as separate property is not absolute. Several scenarios can arise that may alter this classification or create ambiguity:

Commingling of Assets

One of the most common ways an inheritance can lose its separate property status is through commingling. This occurs when inherited assets are mixed with community property in such a way that it becomes difficult or impossible to distinguish between the two.

  • If you inherit $100,000 and deposit it into a joint bank account that also contains your and your spouse’s earnings, it may become challenging to prove which portion of the account balance is your separate property and which is community property. This is often referred to as “tracing” in legal terms.

Intent to Gift

If you receive an inheritance and then take actions that suggest an intent to gift part or all of it to your spouse, it may be considered a conversion to community property. For instance, if you use inherited funds to purchase a home and title it in both your and your spouse’s names, this could be interpreted as an intent to gift half of the property to your spouse.

Income from Separate Property

While an inheritance itself is separate property, any income generated from that inheritance during the marriage is typically considered community property. For example, if you inherit a rental property, the property itself remains your separate property, but the rental income earned during the marriage would be community property.

Appreciation of Separate Property

If separate property appreciates in value during the marriage due to the time, talent, or labor of either spouse (known as “active appreciation”), the increase in value may be considered community property. However, if the appreciation is due to market forces alone (passive appreciation), it remains separate property.

Use of Community Funds to Maintain Separate Property

If community funds are used to maintain or improve separate property, the community estate may have a claim for reimbursement. This doesn’t change the character of the property but can create a financial claim during property division.


Texas Family Code 3.001

The Texas Family Code Section 3.001 provides the legal foundation for defining separate property in the state.

The Texas Family Code Section 3.001 states:

“A spouse’s separate property consists of:
(1) the property owned or claimed by the spouse before marriage;
(2) the property acquired by the spouse during marriage by gift, devise, or descent; and
(3) the recovery for personal injuries sustained by the spouse during marriage, except any recovery for loss of earning capacity during marriage.”

Interpretation and Application

Let’s break down each component of this statute and how it applies to inheritance:

  • Property owned before marriage: This provision doesn’t directly relate to inheritance but establishes the principle that property owned prior to marriage remains separate property. This could include inheritances received before marriage.
  • Property acquired during marriage by gift, devise, or descent: This is the key provision for inheritances. “Devise” refers to property transferred through a will, while “descent” refers to property inherited through intestate succession (when someone dies without a will). Both are explicitly defined as separate property.
  • Recovery for personal injuries: While not directly related to inheritance, this provision further illustrates the nuanced approach Texas law takes to separate property. It shows that even money received during marriage can be separate property under certain circumstances.

Separate Property Titled in Another Spouse’s Name

If you inherit property and then transfer the title to your spouse’s name or to both of your names, this could be seen as a gift to your spouse or to the community estate. This often happens with real estate, where an inherited property is retitled for estate planning or other purposes.

Inheritance Invested in a Jointly-Owned LLC

If you inherit assets and then invest them in a Limited Liability Company (LLC) that you own jointly with your spouse, the assets may be considered community property. This is because the LLC, as a separate legal entity, owns the assets, and the LLC itself is community property.

State Law and Its Impact

Texas laws can significantly impact how inheritance is classified, even beyond the basic separate property designation. Some key legal concepts to be aware of include:

  • Inception of title rule: Texas follows the “inception of title” rule, which means that the character of property (separate or community) is determined at the time the property is acquired. For inheritances, this is typically the date of the testator’s death.
  • Presumption of community property: In Texas, there’s a presumption that all property possessed by either spouse during the marriage is community property. The burden of proof is on the spouse claiming separate property to prove its separate character.
  • Clear and convincing evidence standard: To overcome the community property presumption, a spouse must provide clear and convincing evidence that the property is separate. This is a higher standard than the usual “preponderance of the evidence” used in civil cases.

Re-Titling of Assets

Changing the title of inherited assets can affect their status. For example, if you inherit a house and later refinance it, adding your spouse to the deed, this could be seen as converting the property to community property.

Lack of Documentation or Agreements

Without clear documentation showing the separate nature of inherited property, it can be challenging to prove its status in a divorce proceeding. This is why maintaining good records is crucial.

Protecting Your Inheritance

Given the various ways an inheritance can potentially become community property, it’s essential to take proactive steps to protect your inherited assets.

Keep Inherited Assets Separate

The simplest way to protect an inheritance is to keep it entirely separate from community property. This means:

  • Maintaining separate bank accounts for inherited funds
  • Keeping inherited real estate in your name only
  • Not using community funds to improve or maintain inherited property

Document Everything

Maintain detailed records of your inheritance, including:

  • The will or trust document specifying your inheritance
  • Bank statements showing the initial deposit of inherited funds
  • Deeds or titles for inherited real estate or vehicles
  • Appraisals of inherited property at the time of inheritance

Consider a Postnuptial Agreement

If you receive a significant inheritance during your marriage, consider creating a postnuptial agreement. This legal document can specify that the inheritance, and any appreciation or income from it, remains your separate property.

Be Cautious with Titles

Be very careful about how inherited property is titled. Avoid adding your spouse’s name to deeds or accounts containing inherited assets unless you intend to convert them to community property.

Seek Professional Advice

Given the complexities of Texas property law, it’s often wise to consult with a family law attorney or financial advisor when dealing with significant inheritances. They can help you structure your finances in a way that protects your inherited assets.

Legal Implications in Divorce

Understanding the legal implications of inheritance in a Texas divorce is crucial for protecting your assets and ensuring a fair division of property.

Is My Spouse Entitled to My Inheritance When We Get Divorced?

Generally speaking, if your inheritance has maintained its character as separate property, your spouse is not entitled to it in a divorce. However, this is subject to the caveats discussed earlier regarding commingling, intent to gift, and other factors that could change the property’s character.

Can My Inheritance Be Taken in Divorce?

While separate property is not subject to division in a Texas divorce, there are circumstances where your inheritance could be impacted:

  • If it has been commingled with community property and can’t be clearly traced
  • If you’ve used community funds to improve or maintain inherited property, your spouse may have a claim for reimbursement
  • If the court determines that you intended to gift part of the inheritance to your spouse or the community estate

Burden of Proof

In Texas, there’s a presumption that all property owned by either spouse at the time of divorce is community property. The burden of proof is on the spouse claiming separate property to prove its character.

To meet this burden, you’ll need to provide clear and convincing evidence that the property is separate. This might include:

  • Documentation of the inheritance (wills, trusts, transfer documents)
  • Financial records showing the property remained separate
  • Testimony from financial experts who can trace the separate property

How Intent Works With Inheritances

The intent of the inheriting spouse can play a significant role in determining whether an inheritance remains separate property. Texas courts will look at various factors to determine intent, including:

  • How the property was titled
  • How the property was used during the marriage
  • Any statements or agreements made about the property
  • How the property was treated in financial records and tax returns

It’s important to note that intent isn’t always explicitly stated. Courts may infer intent from actions and circumstances.

How Prenups and Postnups Affect Inheritances

Prenuptial and postnuptial agreements can be powerful tools for protecting inheritances in Texas. These agreements allow couples to specify how property will be characterized and divided in the event of a divorce, potentially overriding the default community property rules.

Prenuptial Agreements

A prenuptial agreement, created before marriage, can specify that any inheritances received during the marriage will remain separate property. It can also outline how income or appreciation from inherited property will be treated.

Postnuptial Agreements

If you receive an inheritance during your marriage, a postnuptial agreement can be used to clarify its status as separate property. This can be particularly useful if you’ve already commingled the inheritance with community property and want to clearly delineate it.

measure our success by yours

Conclusion

Navigating the complexities of inheritance and property division in a Texas divorce requires a thorough understanding of state laws, careful record-keeping, and often, professional legal advice. While inheritances are generally considered separate property, various factors can complicate this classification. If you’re going through a divorce in Tarrant County, give us a call. We’re here to help.

Varghese Summersett is a premier criminal defense firm based in Fort Worth, Texas. Our attorneys focus exclusively on criminal law and represent clients charged with crimes at both the state and federal level. We handle everything from DWI to capital murder to white collar crime. Collectively, our attorneys bring together more than 100 years of criminal law experience and have tried more than 550 cases before Texas juries. All of our senior attorneys served as former state or federal prosecutors and four are Board Certified in Criminal law, the highest designation an attorney can reach. We are the firm people turn to when the stakes are high and they are facing the biggest problem in their lives. - Contact Varghese at