The Law Offices of Kary L. Key
Call Us Today


Does Property Division in a Texas Divorce Include Frozen Embryos?

 Posted on July 05, 2024 in Property Division

TX divorce lawyerDebates between those who consider frozen embryos persons and Texas state law that designates frozen embryos as property went to the Texas Supreme Court for a definitive decision. On June 14, 2024, the Texas Supreme Court declined to consider the case of Antoun v. Antoun, which involved three frozen embryos that were awarded to the husband during a Texas divorce trial.

An IVF consent form from the fertility clinic specifically stated that the husband would be awarded the frozen embryos in the event of a divorce. The trial judge relied on this consent form when deciding the issue. The wife then filed a motion for reconsideration, arguing the embryos must be treated as human beings rather than property, which would require a different standard—one that determines custody rather than disposition of assets.

The District Court declined to reconsider the issue, and an appeals court affirmed that decision in July 2023. The wife then petitioned for a review with the Texas Supreme Court. The Court refused to hear the case with no comment. It is unclear whether or not the wife will take the case to the U.S. Supreme Court. The Texas Right to Life group also filed an amicus brief before the Texas Supreme Court, arguing that frozen embryos should be treated like children rather than property during a divorce.

Regardless of the resolution of that case, courts across the U.S. may soon be grappling with the disposition of frozen embryos during a divorce. IVF clinics may also be required to review their consent process in the event of similar disputes. With changing laws, the situation can be very complex, and can benefit from having a skilled Parker County divorce attorney from The Law Offices of Kary L. Key. Once you have a lawyer advocating on your behalf, you can rest easy, knowing your rights are protected.   

Are Texas Community Property Laws Absolute During a Divorce?

Like eight other states, Texas is a community property state. Under community property laws, when a couple divorces, all marital assets are split down the middle. Most other states operate under equitable division, which dictates that marital property must be split fairly but not necessarily equally. Community property usually includes property purchased or income earned from the date of the marriage.

Property owned before the marriage, along with cash, stock, and bonds owned before the marriage, are considered separate property unless they have been commingled with marital property. The same is true of inheritances or gifts left to one spouse. The overarching premise of Texas community property law is that all property obtained during the marriage is community property unless one party proves otherwise.

Texas community property laws can be bypassed if the couple has a valid pre- or postnuptial agreement. Texas judges can also circumvent community property laws to some degree if they find that doing so will make the division "just and right." A judge can potentially consider:

  • The physical and mental health of both parties, as well as education level
  • Any tax consequences associated with the property division
  • Whether there is fault on the part of one spouse
  • If dissipation of assets on the part of one spouse occurred
  • The employability and earning power of each spouse
  • How the marital property was acquired

Are Frozen Embryos Considered Property?

Right now, frozen embryos are considered marital property to be divided under community property laws during a Texas divorce. Absent a decision by a higher court, most judges may lean heavily on the actual IVF contract. Laws could change rapidly on this issue, which should prompt couples who have frozen embryos to decide now on who would get those embryos in the case of a divorce. Your attorney can draw up a postnuptial agreement that reflects these decisions.

Contact a Palo Pinto, TX Divorce Lawyer

If you are facing a Texas divorce and you are concerned about how your frozen embryos may be "divided" during the asset division portion, it could be beneficial to speak to a Parker County, TX divorce attorney from The Law Offices of Kary L. Key. We are committed to fighting for every client’s rights. Contact The Law Offices of Kary L. Key at 817-599-6969 today to set up an appointment where you can expect solid answers to all your questions.

Share this post:
Back to Top