An inherited house starts as separate property under the Texas Family Code, but you may have to prove it, your spouse may have a reimbursement claim, and if it became your homestead both spouses generally sign to sell. Here is how inheritance, divorce and a sale fit together, with the statutes linked.
This is general information, not legal advice. A Texas family law attorney can apply it to your divorce, and a probate attorney can help if the estate that left you the house is still open.
The short answer
In Texas, a house you inherited, even one you inherited during the marriage, starts as your separate property, not community property. Family Code Sec. 3.001 lists property a spouse acquires during marriage "by gift, devise, or descent" as separate property. But Sec. 3.003 presumes that property either spouse has during or at the end of the marriage is community, so you must prove the house is separate property by "clear and convincing evidence." And if marital money paid the mortgage or improved the house, the community may have a reimbursement claim under Sec. 3.402, valued "as of the date of the trial's commencement."
Our guide to selling a house during divorce in Texas covers community and separate property in general. This guide covers what changes when the house came to you through an inheritance.
Proving the house came to you by inheritance
Because the burden is on you, the question in a divorce is not only whose name is on the deed today. It is how the title came to you. The records that usually show that are:
- the will and the probate court's order admitting it, or letters testamentary or of administration;
- a deed from the executor or administrator conveying the house to you out of the estate;
- a court judgment declaring heirship;
- a recorded affidavit of heirship, or a small estate affidavit approved by the court and recorded, which can pass title to a house only when it was the person's homestead, as Sec. 205.009 defines that word, and the only real property in the estate (Estates Code Secs. 205.006, 205.008(b) and 205.009);
- a transfer on death deed the owner recorded before death (Estates Code Sec. 114.055).
Each one links the person who died to you. Our guide to getting heir property in your name explains how each route works. If the county deed records still show your parent as the owner, start there.
Keep the money records as well: statements showing which account paid the mortgage, property taxes, insurance and repairs after you inherited. They matter for the reimbursement questions below. Ask your family law attorney which of these records your court will want and how to present them.
Part inherited, part bought, and marital money in the house
Under Family Code Sec. 3.006, when the community estate and one spouse's separate estate both own part of a property, each estate's share is set by "the rule of inception of title." Sec. 3.404(a) describes that rule: the character of property "is determined at the time the right to own or claim the property arises."
For example, say you inherited a one-third share from a parent, then used marital savings during the marriage to buy out your two siblings. Under that rule, the third that came by inheritance and the two-thirds bought during the marriage may be characterized differently. How it applies to your deeds and the money trail is a question for your family law attorney.
When the house stays your separate property but marital money or work went into it, the question becomes reimbursement. Our divorce selling guide covers the basics: community money that paid the mortgage or paid for improvements that raised the house's value (Sec. 3.402). Sec. 3.402(c)(3) also counts "time, toil, talent, or effort" spent raising the value of separate property beyond what was reasonably necessary to manage and preserve it, without adequate compensation to the community.
The court resolves the claim with equitable principles and may allow offsets. One rule matters for an inherited family home: if you lived there together, Sec. 3.402(g)(1) says the separate estate may not claim an offset for "use and enjoyment" of a primary or secondary residence it owns wholly or partly, against what the community contributed to it. Under Sec. 3.404(b), a reimbursement claim does not create an ownership interest in the house, but it is a claim against it, and Sec. 3.406 lets the court secure it with an equitable lien.
Rent from an inherited house
If you rent the house out, the rent raises its own question. Family Code Sec. 3.102(a) lists "revenue from separate property" among the community property that each spouse manages alone during the marriage. How that applies to rent from your inherited house is a question for your family law attorney.
Income can also come up in a reimbursement claim. Sec. 3.402(g)(2) lists "income received by the conferring estate from the property of the benefited estate" among the benefits that can offset a reimbursement claim, and under Sec. 3.402(h) the party seeking an offset has the burden of proof. Ask your family law attorney whether rent from the house counts, and how rent you have saved, spent or put back into the house is treated in your case.
If the inherited house became your family home, both spouses still sign
Inheriting the house does not change the homestead rule. Family Code Sec. 5.001 reads:
Sec. 5.001: "Whether the homestead is the separate property of either spouse or community property, neither spouse may sell, convey, or encumber the homestead without the joinder of the other spouse except as provided in this chapter or by other rules of law."
The Texas Constitution, art. XVI, Sec. 50(b), also requires "the consent of each owner and the spouse of each owner" to sell a homestead, so if you and your spouse made the inherited house your homestead, your spouse generally has to join in the sale even though only your name is on the deed. Chapter 5's court-run exceptions and the general "who signs" rules are in our divorce selling guide.
Selling it while the divorce is pending
Once a divorce is filed, a temporary restraining order under Family Code Sec. 6.501(a)(11)(A) can bar either spouse from selling "any of the property of the parties or either party," separate or community, "except as specifically authorized by the court." Some counties have standing orders that apply from the day the petition is filed; Denton County's standing order, paragraph 3.4, covers property "claimed as separate or community property." Our guide to divorce standing orders and selling the house compares the county orders and explains how to get the court's authorization.
If a parent dies while your case is pending, you are still married, so the inheritance comes to you during the marriage. Ask your attorney how Sec. 3.001 and any order in your case apply to it before you sign anything.
If the estate isn't settled yet, or you share the house with siblings
Under Estates Code Sec. 101.001, a person's estate vests immediately at death in the devisees under a will, or in the heirs if there is no will, and Sec. 101.051 makes it subject to the person's debts. So you may own your share before any paperwork is filed, but the county deed records usually will not show it until one of the recorded routes is used. Who signs the deed depends on that route, such as an executor or administrator with letters, or the heirs themselves; our heir property guide compares them.
If you inherited with brothers or sisters, the share you inherited is what starts as your separate property; the co-owner rules decide what happens to the whole house. Under Property Code Sec. 23.001, any joint owner can ask a court to partition it. Our guides on whether an heir can force a sale and a sibling who won't sell cover what comes next.
Taxes, in one paragraph
For federal income tax, IRS Publication 504 says no gain or loss is generally recognized on a transfer of property to a spouse, or to a former spouse if the transfer is incident to the divorce, and its definition of property includes separate or community property. If the settlement gives the house to your spouse, Publication 523 says a spouse who receives a home in a divorce from a former spouse who was the sole owner starts with that former spouse's adjusted basis. The same publication says the basis of an inherited home is generally its fair market value on the date of death; our guide to taxes on inherited property in Texas explains it. Talk to a tax professional before you sign a settlement or a sale contract.
Selling an inherited house to Cash Home Advisors
Cash Home Advisors buys houses in Dallas–Fort Worth, Houston, San Antonio and Austin. The sale does not depend on a bank loan. You can sell as-is, with no repairs, we pay all closing costs, and there are no agent commissions. While a divorce is pending, a standing order or TRO can bar the sale until the court authorizes it. Once any court authorization your case requires is in place and the title company has the inheritance paperwork and every required signature, we can close in 7–14 days.
A cash sale is one option, not the only one. Compare listing and other paths on our ways to sell page, read about selling an inherited house in Texas, or request a free, no-obligation offer.
Frequently asked questions
Does my spouse get half of the house I inherited in Texas?
Not as a starting point: Family Code Sec. 3.001 makes property a spouse acquires during marriage by gift, devise or descent that spouse's separate property. But Sec. 3.003 presumes that property either spouse has during or at the end of the marriage is community property, so you must prove the house is your separate property by clear and convincing evidence.
My spouse helped pay the mortgage on my inherited house. Do they get anything back?
Possibly. Under Family Code Sec. 3.402, the community estate can have a reimbursement claim when marital money paid a debt that should have been paid from your separate estate, or paid for improvements that raised the house's value, and Sec. 3.406 lets the court secure that claim with an equitable lien on the house.
Can I sell my inherited house during the divorce without my spouse?
Possibly not. Once the divorce is filed, a temporary restraining order under Family Code Sec. 6.501 or a county standing order can bar either spouse from selling separate or community property unless the court authorizes it. If the house is your homestead, Sec. 5.001 also generally requires your spouse's joinder even when the homestead is your separate property. Ask your family law attorney before you sign a contract.
What papers show I inherited the house?
Usually the will with the probate court's order or letters, a deed to you from the executor or administrator, a judgment declaring heirship, a recorded affidavit of heirship, an approved small estate affidavit (which passes title to a house only in limited homestead cases), or a transfer on death deed the owner recorded before death. Keep the bank records that show which account paid the mortgage, taxes, insurance and repairs too, and ask your attorney what your court will need.
What if I inherited only a share with my siblings?
The share you inherited starts as your separate property under Family Code Sec. 3.001. If you later bought out a sibling during the marriage, Sec. 3.006 says that when the community and a spouse's separate estate both own part of a property, the rule of inception of title sets each estate's interest; ask your family law attorney how that applies to the share you bought. Siblings who still hold shares remain co-owners, and under Property Code Sec. 23.001 any joint owner can ask a court to partition the house.
Sources
- Texas Family Code, Chapter 3 (Secs. 3.001, 3.003, 3.006, 3.102, 3.402, 3.404 and 3.406 separate property, management and reimbursement)
- Texas Family Code, Chapter 5 (Sec. 5.001 sale of the homestead needs both spouses)
- Texas Family Code, Chapter 6 (Sec. 6.501 temporary restraining order in a divorce)
- Texas Constitution, Article XVI (Sec. 50(b) homestead consent)
- Texas Estates Code, Chapter 101 (Secs. 101.001 and 101.051 estate vests at death, subject to debts)
- Texas Estates Code, Chapter 205 (Secs. 205.006, 205.008(b) and 205.009 small estate affidavit and the homestead)
- Texas Estates Code, Chapter 114 (Sec. 114.055 transfer on death deed must be recorded before death)
- Texas Property Code, Chapter 23 (Sec. 23.001 partition)
- Denton County Standing Order Regarding Children, Property and Conduct of the Parties (filed Feb. 27, 2025; posted on TOPICs, Texas Office of Court Administration)
- IRS Publication 504, Divorced or Separated Individuals (Property Settlements)
- IRS Publication 523, Selling Your Home (Home Received in Divorce; Home Inherited)
General information, not legal or tax advice. Talk to a Texas attorney or CPA about your situation.