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What Happens to Inherited Property After Divorce?

Question: My spouse and I have concluded that we are no longer willing to continue our marriage. I have some property I inherited a number of years ago from my grandparents. Is my spouse entitled to half or some other part of that property or interest in it as a result of our divorce?

Answer: Although this is the type of answer you hear lawyer jokes about, it actually is the correct answer to say IT DEPENDS. It actually does depend on some variables not included in your question. Some of the factors are :

  • Whether there are minor children involved and corresponding issues of child support
  • Whether your inherited property has been improved or costs of ownership (such as property taxes) were paid during the marriage
  • Whether the property division ultimately agreed to by the parties or ordered by the Court will involve a debt from the spouse who owns the inherited property in favor of the other spouse and whether such debt requires security or collateral not otherwise available.

The short version (I promise) is that property of the type you describe, upon your receipt of it by gift or inheritance, is classified as separate property as opposed to community property (jointly owned by virtue of acquisition during the marriage) and as a basic premise of separate property is that it is solely owned by the spouse who received it to the exclusion of the other spouse. So the answer to your question should be no……correct? Not so fast.

In marriage dissolution in Texas, the Courts are required, with respect to property and debts of the spouses (the community), to achieve a “just and right division” of the community (jointly owned stuff). Also, the law in Texas with respect to married persons presumes, in the absence of a prenuptial or other legally enforceable agreement, that all property is community property, i.e., owned in undivided interests by both spouses. In addition, there are some obligations, such as child support, which are mutual and owed by both spouses. Accordingly, the legal presumption of community and joint debt obligations, as well as rights of a non-owner spouse who contributes actual or deemed jointly earned income to an increase in value of property owned by the other spouse, can acquire rights either by way of an encumbrance upon separate property or even necessitate that the Court enter an order to sell the property to pay debts, secure a child support obligation, or otherwise achieve a “just and right division” of a community estate.

Unless you have previously been through a divorce with mixed property issues or have fairly extensive legal training, you are probably getting a headache about right now!

Suffice it to say that in many cases, it just ain’t that easy. If you find yourself or someone you know in a situation involving separate property,  you would be well-deserved to have the advice of a board-certified family lawyer. The Law Office of David S. Bouschor, II, has been successfully handling these types of cases since 1991.

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