The Love DuCote Law Firm LLC Legal Blog

Separate versus community property in the event of divorce

More and more people are becoming aware of the need for estate planning in Texas. Protecting assets for one’s heirs has become an important issue and people realize they can protect those assets with an estate plan. Most plans attempt to cover all foreseeable contingencies. Divorce may be one contingency that is not planned for. In the event of a divorce involving an heir, the issue of separate versus community property may arise.

For example, a woman recently died and her seven children were her heirs. One of the siblings was in the process of getting a divorce. The question arose concerning her share of her mother’s estate. The question concerned whether her spouse was entitled to a share of the estate as community property.

If the property is left solely to the heir, it is separate property and not subject to community property division in a divorce. However, if the inheritance earns income then the amount of the income earned from the time of the mother’s death to the time of the divorce being finalized may become community property and half may go to the soon-to-be ex-husband. Depending on the size of the inheritance, it is possible the husband would receive more than half.

A person who is considering an estate plan in Texas and is concerned about, or has questions about, separate versus community property should consult with an experienced estate planning attorney. The same goes for someone who is an heir and may have questions regarding the settling of an estate. A lawyer can review an existing document or aid in the creation of a new one.

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