Who gets an inheritance after a divorce?
Inheritance questions arise with some regularity in divorce cases. The question often goes: my parents left the money to me so it is mine, right?
Although this does not sound like a question, it is. In this case, one spouse was left money by their parents during the marriage. A divorce action has now been filed and the question of how to address this asset arises.
How do we classify the inherited asset for divorce purposes? As the famous line goes, it depends. First, we look to see how the asset was left to an individual spouse. A proper Last Will & Testament or Trust Instrument clearly showing the devise to one spouse individually is a good start.
Next, we look to see how the asset has been managed by the spouse since it was inherited. Was the inherited money kept by the spouse whom received it in a separate account in their name alone. Was the inherited money used to support the lifestyle of the marriage or pay expenses of the marriage. These questions must be answered to determine if the inherited asset was “co-mingled”.
A bequeath or devise to one spouse individually from a third party is often times initially presumed to be a non-marital asset. This means that it will start out as their own separate asset. However, intentional action must be taken to preserve this gift as a non-marital asset.
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