I'm getting a divorce. Is my inheritance protected?

An inheritance is a gift left to an individual after another person has died. The gift then becomes part of the heir's property, but if that person is married, is his or her spouse entitled to a share of the funds? For some, an inheritance can represent a large portion of personal wealth.

Inheritances are typically viewed as separate property. However, if you are considering a divorce and have received or will soon receive an inheritance, there are a few factors that go into determining whether the soon-to-be ex-spouse receives a share of the inheritance during a divorce. Determining the specific factors of whether and how an inheritance becomes shared property can be a challenge. Luckily, help is available.

When did you receive the inheritance?

The timing of the inheritance can play a part in determining whether your inheritance qualifies as community property or separate property in Texas. If you received a large inheritance prior to your marriage, you may want to consider protecting the assets with a prenuptial agreement. However, if you are married already, and no prenuptial agreement exists, your inheritance may still be your property alone if the funds are kept separate from all marital property.

How are you using the funds?

Comingling is the key factor for whether your ex-spouse has a claim to your inherited funds. If an inheritance pays for joint marital expenses, it most likely will lose its separate property immunity. Therefore, an inheritance deposited into a joint account, or one used to make improvements on a shared property, loses its separate property designation. If you expect to receive an inheritance and do not wish to share it, you will definitely want to have a plan in place where you can separately keep the funds.

What was your intent?

In some cases, an individual may have deposited funds into a shared account, but his or her wish was never to share the inheritance. Perhaps the decision was one of convenience. You may be able to prove that you never intended to share the inheritance, but the burden of proof for this claim can be onerous. You may find that you need experienced outside help with this scenario.

Getting necessary help

Preparation is key when handling inheritance funds, and protecting your assets is possible both before and during your marriage. An experienced attorney can carefully examine your specific circumstances, answer any of your questions and concerns, and guide you toward the best possible outcome for your future.

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