What Happens to Inheritance After Divorce?

What Happens to Inheritance After Divorce

When a couple embarks on the process of getting a divorce in Florida, marital asset distribution is often a point of debate. Frequently, questions arise on inheritance and whether it should be treated as a marital asset. If one spouse receives inheritance in the form of money, property, or other assets during or before the marriage, does the other spouse have claim rights?

The answer depends largely on two main factors: whether the inheritance was left to the individual or the couple, and how the inheriting spouse handled the assets after inheritance.

In most cases, inheritance that was inherited by both spouses will be divided between them in a manner that is fair and equitable after the divorce.Click To Tweet But if the inheritance was only left to one spouse, that’s when things start to get trickier. To get a better understanding of when and why inheritance is subject to equitable distribution as marital assets, let’s take a look at what marital assets and non-marital assets might include.

Distinguishing Marital Assets from Non-Marital Assets

Marital assets are property that you and your spouse own together, typically obtained during the marriage by one or both spouses. During divorce, Florida courts will divide marital assets and liabilities between two spouses in a way that they consider most fair and equitable. Regardless of whether the asset or liability was acquired in only one party’s name, it may still be considered a marital asset in court. Marital assets could include real estate, bank accounts, and motor vehicles. Marital liabilities could include debt and loans, and also may be divided equally.

Alternatively, non-marital assets may include assets obtained by either party before the marriage, gifts received during the marriage, assets the couple agreed in a pre-nuptial agreement not to share, and income received from any non-marital assets. In Florida, courts do not divide non-marital assets or liabilities after a divorce.

Inheritance Acquired During Marriage

So where does inheritance fall? Typically, inheritance received by one spouse is not considered a marital asset, even if it was acquired during the marriage. However, this changes if you share or “comingle” inheritance with marital assets. When you comingle a non-marital asset with marital assets by using it in a way that benefits joint marital assets, it is no longer considered separate property and may be subject to equitable division in a Florida divorce.

Let’s take a look at a couple of examples. If you place your inheritance in a joint bank account shared between you and your spouse, the inheritance becomes a marital asset. If you use your non-marital inheritance to buy marital real estate, Florida courts may decide your inheritance is now a marital asset.

Inheritance Acquired After Marriage

Even if you came into your marriage with inheritance or other assets of your own, these may still be considered marital assets if they are comingled with other assets. For instance, if you used inherited funds to purchase your home or deposited inheritance funds into a joint bank account, even a pre-marriage inheritance can be considered marital assets and be subject to equitable distribution.

Inheritance Acquired During Marriage

Protecting Your Inheritance

If it was not your intention to comingle funds, you’ll have to demonstrate this in court if you want it to remain a non-marital asset. However, contesting the sharing of an inheritance can be incredibly difficult, since there is a high burden of proof. If you are seeking to contest the presumption of shared inheritance, it’s advisable to seek the guidance of an experienced divorce attorney.

Alternatively, there are two preventative measures you can take to ensure your inheritance is protected in the event of divorce. The most effective strategy is to sign a prenuptial agreement that explicitly states how property will be divided in divorce. Any person entering a marriage with inheritance or the expectation of receiving inheritance should consider executing a prenuptial agreement to prevent family conflict and confusion in the event of divorce.

Protecting Your Inheritance

You can also protect your inheritance by refraining from comingling any of your inheritance with marital funds or assets. Avoid depositing inheritance into shared accounts, or using marital funds to improve inherited property.

Whether you are just entering a marriage or contemplating a divorce, it’s a good idea to speak to an experienced Florida estate planning lawyer to learn how divorce may affect your inheritance. A seasoned attorney can help you ensure your property is protected, and represent you if you are seeking to contest the sharing of inheritance. With a compassionate and aggressive attorney on your side, you can reduce the conflict and confusion of divorce and ensure the best outcome for your case.

About the Author:

Christopher Q. Wintter is the founder of Wintter & Associates, P.A. and a board-certified expert in Trust and Estate matters by the Florida Bar. With more than 24 years’ experience as a practicing attorney, he also serves as an instructor and faculty member for the National Institute of Trial Advocacy (NITA)—the nation’s leading provider of legal advocacy skills training to practicing attorneys—and has earned the AV® Preeminent™ rating with LexisNexis Martindale Hubbell. He was also selected for inclusion in Florida Super Lawyers for 2011 and 2012 in Estate and Trust Litigation.