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Among the many things you may be worried about in your pending divorce, asset division is probably a big concern for you. After all, asset division can be highly personal, impacting assets you have acquired over the course of your marriage, as well as highly relevant to your financial well-being. Asset division incident to divorce can be a complicated and confusing process. It can be important to arm yourself with some of the basic information regarding the process and what assets will actually be subject to division. For instance, you may have assets that you inherited during your marriage and may be wondering whether they will be subject to division in divorce.

What Happens to an Inheritance in Divorce?

In Texas, an inheritance is not usually considered to be community property, even if it was acquired during the course of a marriage. Texas divorce law specifically provides that assets acquired “by gift, device, or descent” are considered to be separate property and, therefore, not subject to division in a divorce. This is an exception to the general rule that property acquired during the marriage is marital property. Another exception includes most personal injury awards being considered separate property as opposed to marital property even if awarded during the marriage.

There is, however, a big caveat to the general rule of inheritance being considered separate property. Inherited property can be, and often is, commingled over the course of the marriage. This is especially true of longer marriages. Much like ingredients become difficult to separate out once combined, so is it difficult to distinguish and untangle inherited property from marital property once the two have been combined. For instance, commingling can happen when an inherited asset is used to make improvements and enhancements to marital property.

If inherited property becomes marital property due to commingling or something else, it is likely to be subject to division along with other marital assets. During division, the court will act pursuant to Texas’s community property laws. The marital property will be divided equitably as the court considers a number of factors relevant to such a determination, including:

  • The income of the parties
  • The earning capacity of the parties
  • Custody of minor children
  • Non-economic contributions to the marriage

If you are concerned as to whether an inheritance may be classified and divided as marital property in a divorce, there are safeguards you can put in place to avoid this. A prenuptial agreement or postnuptial agreement, for instance, is often used to address such classification issues. In the agreement, you can specify which property is to be considered separate property, including inheritances, in the event of divorce.

Family Law Attorneys

Do you have questions about the divorce process? Do you worry about asset division in divorce proceedings? You are not alone. The trusted team of family law attorneys at Navarrete & Schwartz is here to answer your questions, guide you through the process, and protect your best interests along the way. We are proud to serve the residence of Midland, Texas. Contact us today.