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How inheritances may be divided in a divorce

Individuals in Texas who are divorcing and negotiating property division may also have to deal with inheritances received by one or both spouses. While inheritances technically belong to the person to whom the inheritance was directed, commingling these assets can cause complications.

Legally, an inheritance is considered separate property, which is not normally considered for equitable distribution. However, if the inheritance was used by both individuals or deposited in a joint account, it may then be considered marital property.

Prenuptial agreements may be one way to protect inheritances. Inheritances received prior to the marriage can be named in prenuptial agreements, as can inheritances that are expected to be received after the marriage.

There is a possibility that an individual who has commingled funds from an inheritance can successfully argue that the intention was not to share the funds. However, the burden of proof in such a circumstance is high, and a court may still rule that only a portion of the inheritance belongs to the original heir.

Individuals dealing with property division may wish to consult an attorney. This may be particularly true in complex cases such as those involving commingled inheritances. For example, an individual may have a prenuptial agreement that covers inheritances received before and after marriages. That individual may then have received an inheritance and deposited it into a shared account. The individual may then argue that the prenuptial agreement demonstrates that there was not an intention to share the funds. However, prenuptial agreements can be challenged in court, so this is still not necessarily an airtight defense. The advice of an attorney as to how best to proceed might be useful in such a case.

Source: Findlaw, "Inheritance and divorce", December 05, 2014

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