Can Your Spouse Get Your Inheritance in a Divorce?
It depends — and that's the problem many individuals face when they decide on divorce. Whether you're going a traditional route or opting for the ease of online divorce tools, understanding where your inheritance falls and how to protect it is important. Ownership of inherited assets depends first on the intent with which the items were bequeathed. If it's obvious that the inheritance was meant for one person, then that person typically retains sole ownership of the assets.
This is true in both common-law property and community property states. If estate documents or other evidence seem to indicate that items were bequeathed with the intent of benefiting both individuals in a marriage, however, the assets could be considered joint property. Regardless of how ownership of inherited items begins, you can convert them into community property if they are commingled. Commingling assets means that you integrate them in a tangible way with jointly held property within the marriage.
Some examples of commingled property include:.
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One of the best ways to protect your inheritance is to keep it separate from all marital property. Don't deposit it into an account you share with your spouse or use it to fund joint purchases. If you previously commingled assets from an inheritance, and you're looking to reverse the damage before you go through divorce, you could be looking at a difficult burden of proof.
For the court to consider previously commingled inheritance assets as separate property again, you have to show, first, that the inheritance was only meant for you and, second, that you didn't intend to mingle the assets. Proving that you didn't mean to share assets that you deposited into a joint banking account, for example, can be extremely difficult, though not impossible.
If you've already commingled inherited wealth, consider talking to a family law attorney about the evidence and arguments required to reclaim sole ownership. We respect your privacy.
Distinguishing Between Community Property and Separate Property
When two people divorce , questions sometimes come up as to whether one spouse may claim rights to another spouse's inheritance funds acquired during the marriage. An inheritance can occur during the marriage, but it can also happen before a marriage and get mixed in with other marital assets.
This article addresses some of the common legal situations that arise regarding inheritance and divorce. Generally, inheritances are not subject to equitable distribution because, by law, inheritances are not considered marital property. Instead, inheritances are treated as separate property belonging to the person who received the inheritance, and therefore may not be divided between the parties in a divorce. However, if it's shared between spouses, an inheritance can be treated differently based on rules that vary greatly among the states.
For instance, if the inheritance is deposited into a joint bank account and used for joint marital expenses called "comingling of the inheritance" , the inheritance can lose its separate property status.
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Likewise, if the inheritance is used to make improvements to the primary residence, it may also lose its separate status. Therefore, comingling is key -- if separate property is used in a way that benefits joint marital assets, the inheritance may no longer be considered separate property, and may be subject to division upon divorce. The majority of states follow an equitable distribution approach , where property is divided fairly, but not necessarily equally. In an equitable distribution state, a judge may treat a gift or inheritance in one of the following ways:. Even among equitable division states, property laws can differ.
Be sure to consult a local family law attorney if you have questions about property division in your case. Below are some general rules governing gifts and inheritances. Gifts between spouses may be treated as a gift to the couple's marital estate. Gifts can also be made to you and your spouse as a couple.
You and your spouse can receive a joint gift from a family member or a third party.
Marriage, Divorce & Inheritances: What Are My Rights?
For example, you may be required to prove that a payment from your grandmother was meant to be a separate gift to you and not a joint gift to you and your spouse. Separate property can become marital property depending on how you hold its title and use the property during your marriage. Commingling or mixing your separate assets, such as bank account balances, with marital assets can convert the separate property into joint. When it becomes too difficult for a court to determine what portion is separate and what is community, and you don't have the evidence to tie it all out, a judge may be inclined to call it all joint.
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