Are Gifts Considered Separate Property In A Texas Divorce?

The Marble Team

Are Gifts Considered Separate Property In A Texas Divorce?

Family Law
| 5 min
7 minutes

For most couples in Texas, a divorce is a journey into the unknown. You may be familiar with concepts like child custody and alimony, but you’ll likely realize that there are many other areas to consider after filing for a divorce.

You’ll soon become familiar with the distinction between separate property and community property. Broadly speaking, the separate property belongs to you alone, whereas community property is jointly owned.

Texas law states that gifts and inheritances received during marriage count as separate property, as do possessions from when you were single. Any assets and debts gained during the marriage are deemed to be community property. The distinction is hugely important in divorce because most, if not all, community property is split evenly between spouses. If you can prove that an asset is separate property, you don’t necessarily have to share it.

So, are all gifts considered as separate property in a Texas divorce? The answer is a resounding: “it depends!”. Read on to discover what the law has to say on the matter, what factors influence the final decision, and what you can do to ensure you hold on to what’s rightfully yours.


What Texas Law Says About Community Versus Separate Property

Texas is one of nine US states that embraces the concept of community property. In some circumstances - such as if your partner committed adultery - the judge might rule that you’re entitled to a more significant share of community property. In most community property states, the starting position is a straight 50/50 split, although the courts in Texas may deem it just and right to do otherwise. 

Compare that position to separate property, which refers to assets you owned when you were single, plus any gifts, inheritances, or personal injury settlements you received during your marriage. Separate property remains yours and yours alone.

It’s important to understand that in this context, the word “property” refers to all your assets: not just housing, but also anything valuable like jewelry, furniture, antiques, cars, pensions, investments, and shares. It covers your debts too.

Legally, there are plenty of grey areas around separate or community property. What if your late mother left her house to both you and your spouse? What if a $10,000 gift from your father was paid into your joint account? And what if you used your inheritance to pay off the mortgage on your family home? These questions illustrate some of the legal uncertainties in a divorce, so let’s look in a little more detail about how the law operates in this area.

How Gifts Are Evaluated During A Divorce

In some cases, it’s straightforward to define a gift: say a mother who gives her daughter her diamond engagement ring. However, the lines can become blurred very quickly. If that $10,000 gift from your father was paid into your sole account, it’s easy to prove that it was intended for you alone. But if it was paid into your marital account, that may be harder to establish.

Sometimes separate property has no impact on the division of community property. In other circumstances, the value of separate property is factored into the final settlement, and, in some instances, separate property is even classified as community property. Every divorce is unique.

When deciding on gifts, the courts will also consider where they came from and when they were given.

Who Have They Come From? 

The giver of the gift may be significant when establishing whether it counts as separate or community property, especially if it was from a family member.

When Were The Gifts Given?

If you were single when you received the gifts, then they count as separate property. Even if you received them during your marriage, they still count as the same unless your spouse can prove otherwise.

Why Gifts Are Primarily Deemed To Be Separate Property

To understand why gifts are primarily considered separate property, it’s perhaps easier to first explain the principles behind community property. Once you’re married, the law generally views anything you acquire together as being jointly owned and, therefore, to be jointly shared in the event of a divorce.

However, property that was yours before the marriage was earned by you alone. During your marriage, any gifts, inheritances, and personal injury settlements that were given to you remain yours. Your partner played no part in the acquisition in both scenarios, so they have no entitlement to this property.

What About Gifts Received Before The Marriage?

In general, the position around gifts received before marriage is a little clearer. Because the gift was given to you when you were single, there can be no argument about whether it was intended to be shared.

However, things can get messy in a divorce, and your spouse may try to make exaggerated or false claims. So be prepared to provide proof that you received the gift when you said or know you did. Also, remember that finding such evidence, especially if it’s from a long time ago, is often easier said than done.

Complications can arise if you use separate property to purchase community property. Let’s say you inherited a small house when you were 21 and sold it to help fund your first home when you got married. In that case, the law may say that your separate asset has become marital property.

How An Experienced Lawyer Can Help You Ensure Equitable Gift Distribution

It’s always best if you and your spouse can reach a mutual divorce agreement without going to court. But even then, you should always get a trusted family lawyer to check over your settlement to confirm that it’s legal and that it doesn’t contain any hidden conditions.

Using the know-how of a family law attorney helps to ensure you get equitable gift distribution. They can tell you what you’re entitled to, how to prove what’s yours, and what strategies to use if the case goes to court.

Bottom Line

Texas law can be pretty confusing when defining what constitutes separate and community property in a divorce. In such situations, you need informed, expert, legal counsel. An experienced family lawyer is ideally positioned to give you sound advice and make sure you get your fair share of gifts and inheritances.

7 minutes
Dec 30, 2020
The Marble Team