What Happens to Inheritance in a Texas Divorce?

 Posted on April 17, 2025 in Complex Property Litigation

If you are in the process of dissolving your marriage, you likely have questions about what will happen to your property, including your inheritance. More often than not, inheritance is considered non-marital property. Whether you anticipate an uncontested or contested divorce, you need to understand how Texas law applies to asset division to ensure you receive a fair settlement. An Austin, TX divorce lawyer can explain how divorce may impact your inheritance and protect your rights through the divorce process.

Can Inheritance Be Considered Community Property?

Texas law considers all property possessed by either spouse during the marriage community property. However, in the Texas Family Code, statute 3.001(2) states that property given to you during the marriage "by gift, devise, or descent" belongs to you, making it non-marital property. Non-marital property is not divided during divorce. As the person claiming the inheritance as yours alone, you are responsible for proving that it originated as an inheritance. 

How Can You Protect Your Inheritance From Divorce?

No precaution goes too far in protecting assets that legally should belong to you after divorce. Some methods for protecting your inheritance must be done before marriage, but others can be done during:

• Create an estate plan: Having an estate plan is a good idea in general, especially if you have significant assets. You can place an inheritance in a trust, listing your children as the beneficiaries to establish it as separate property.

• Prenuptial agreement: If you decide to remarry one day, you can outline your desire to retain ownership of your inheritance with a prenuptial agreement. In the event of another divorce, the document will outline the division of assets as you predetermined.

• Postnuptial agreement: A postnuptial agreement is essentially the same concept as a prenup. It outlines how you will distribute assets if you divorce, but it is signed after marriage.

• Seek a court ruling: If your inheritance money is commingled, requesting a court ruling to establish that what remains of it is your separate property may be necessary. 

In Texas, there is no definitive timeframe for establishing a postnuptial agreement. However, if you are already discussing divorce or in the process of divorcing, it is likely not a viable option. Keeping separate property separate from the start is a tried and effective way to protect your inheritance.

Speak With a Travis County, TX Divorce Attorney Today

When you work with an Austin, TX divorce lawyer at Powers Kerr & Rashidi, PLLC, we can help you find the evidence you need to prove that your inheritance is yours. Divorce can be contentious and stressful, especially if you have a substantial asset portfolio. Without legal representation looking out for your best interests, you risk walking away with an unfair settlement. Call 512-610-6199 today and schedule a consultation to get answers to all your questions related to asset division.