Inheritance and Divorce

Divorce can affect inheritance. An ex-spouse can claim rights to your inheritance acquired during the marriage. So for instance, your uncle expires leaving you will all his assets. You are the only person named in his will. He was aware that you were married but did not include your ex-spouse in his will. Your ex-spouse will have a right to these assets. Whether or not you will have to part with a portion of the assets will depend on what you do with them. Legally speaking inheritances are not marital property and therefore not subject to equitable distribution. Inheritances are generally considered as separate property of the person and he or she will generally get to keep it in case of a divorce.

If you share a part of your inheritance, then state law will determine how the inheritance will be treated in case of a divorce. The law varies significantly from state to state. Generally if you put your inheritance in your joint bank account, it will no longer remain your separate property. In short, if you commingle your assets, it will lose its separate identity. Similarly if you use the inheritance to make changes or remodel your marital home, it will no longer be your separate property.

Remember – if you want to keep your inheritance as your separate property, you should not commingle it with other your joint assets. Commingling will result in the inheritance losing its status a separate property.

I have inherited certain assets before the marriage. Won’t those assets be my separate property?

Generally, when people get married, they have some assets of their own – assets which they acquired prior to the marriage. Your state law will determine how such assets are treated in case of a divorce. Once again if you commingle the inheritance, for example, deposit the inheritance into a joint account, then it will lose its status as a separate property. If you do not commingle your inheritance, it will continue to remain your separate property.
One of the best methods of protecting the assets you acquired before marriage is to use a prenuptial agreement.

I commingled the inheritance by depositing it in a joint account but I never had any intention of sharing it with my spouse. Will my spouse get a share of the inheritance in case of a divorce?

Generally, when you commingle assets, it loses its status as a separate property and will be considered marital property. There have been cases where the courts have held a part of the commingled asset to be separate property. However in such cases, the parties have had to prove that there was no intention of sharing. It is very difficult to prove this in a court of law. Seek the assistance of an experienced family law attorney.

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