I’m often asked by individuals who are in the midst or fringe of a divorce, whether or not there soon-to-be EX is entitled to their inheritance in the divorce.

To answer this question let me first give a summary of what is divided in a divorce and how.

In a divorce the marital property will be divided fairly or “equitably” between the parties, hence the term equitable distribution.  This can be done by agreement of the parties in a marital settlement agreement or the Court will determine what is equitable.  You can read my article on equitable distribution to determine how the Court decides what is equitable.

Now whether or not the inheritance is marital property and to be divided is the key question.

Normally inheritance that is left to one person and one person only is excluded from marital property and not subject to equitable distribution in a divorce.

The waters get murky when parties commingle the inheritance with marital property or use the inheritance funds for common marital benefit.  For example, when inheritance money is used to make improvements on the marital home, the Inheritance was just commingled with marital property and can now be subject to equitable distribution.  Another example is if your spouse contributes to paying the inheritance tax then the inheritance could be subject to equitable distribution in divorce.

Even if the inheritance is kept in an entirely separate account the increase in value for the Inheritance during the marriage is also subject to equitable distribution.

The issue of inheritance can become even more complicated when you are dealing with real property.

It may be an awkward conversation with your spouse to discuss why you are keeping the funds separate, but if you are marriage is on the rocks, then separate is your best option.  You should also make an appointment to speak with an attorney right away to discuss other means of protecting your inheritance.

The Law Office of Dawn Padanyi can meet with you to assess your options and provide you with advice on the best means of protecting this valuable asset.