Separate property can be thought of in various forms – assets owned prior to marriage, those acquired by gift, part of an award from a personal injury suit, and assets received by way of inheritance.
Unlike community property, which is divided in a just and right manner (a fair manner) in a divorce, separate property is not divided. It belongs to the separate estate of the person who owns it, and its value is not apportioned in the property division. Texas law considers all assets that exist at the time of divorce to be community property and, therefore, subject to division. It’s up to the separate property owner to prove by clear and convincing evidence that his or her separate estate belongs to that person and that person alone.
Often, we will see a spouse who has received, during their marriage, money, real estate or other assets from an inheritance. If the divorce took place at the same time that the property was inherited, there would not likely be much of a legal argument over its character as separate property. But most divorces don’t happen that way. There is time between receiving the inheritance and finding oneself in a divorce. It is that time which can cause a contest.
For instance, if the husband received $100,000.00 from his mother’s estate and put it in the parties’ joint bank account, along with the couple’s community money, how do we tell which part is his separate property and which part belongs to the community? As time goes by and the parties put money in that account and pull money out, the character of the husband’s inheritance starts to blur. If it blurs enough, then the court will consider the entire account to be community property and divide it accordingly. However, if the husband puts that money into a separate account – one used only for his separate property money, it becomes easier to show that the money is his separate property.
Consider, as another example, a wife who inherits her mother’s home and the home is not sold during the marriage. Without other influences on the title to that real estate, her inherited home will still be hers upon dissolution of the marriage.
These are two simple examples of what can happen with inherited assets. Depending on the type of property and what is done with it during the marriage, the disposition of those assets at the time of divorce may be simple or very, very complex.
The experienced and skilled family law attorneys at Orsinger, Nelson, Downing & Anderson can help you sort out and develop realistic solutions to problems that may have been created since you inherited your property.