This is an issue that came up about a month ago we spoke with a gentleman who is moving toward divorce. He has been separated for some time. Recently and unfortunately he had a parent passed away so he is coming into some inheritance money and he is concerned that his wife is going to get a piece of that.
How Long Is The Marriage?
So the way this works is that everything owned by either party, either individually or jointly is in the marital pop for division. Now that doesn’t mean that everything will actually be divided. And when it comes to inheritance, gifts, a couple of significant factors are;
Number one is the length of the marriage. So the longer the marriage the more likely it is that any amount inherited by either party is at the very least going to be considered in division.
When Was The Property Inherited?
Number two is, the timing of the inheritance. So there is a difference in the eyes of most judges between someone receiving an inheritance in the heart of a marriage. Especially, if it’s a longer term marriage as opposed to someone receiving an inheritance at the tail end when the party is already split up when the marriage is effectively already over. So those are a couple of key factors.
Was That Property Commingled With Marital Assets?
Another factor is whether the inheritance asset or money is commingled with marital property. So if you want to optimize your chances of keeping inheritance money, first of all a prenup is a best way to do that but most people don’t have a prenup.
And so the second best thing you can do is keep those assets keep that money segregated. The more that you mix marital money with assets from an inheritance, or the more that you mix any marital assets with assets are inherited the greater the risk that those assets are going to be considered for division.
Now they may be considered anyway it really depends you know we will give you an example. If you have say as 30-year marriage and you had one of the parities inherit some assets in year 15 and these people have had an economic relationship throughout. There have been no significant splits in terms of time apart and both parties contributed to the marriage economic, no economic, some combination. In that situation in a long-term marriage where the assets are inherited at about the midway point, that’s probably going to be in the marital pot and it’s probably going to be divided whether it’s 50, 50 that’s at the discretion of a judge.
But that is very different from say a two year marriage, where the parties split up and are about to get divorced the case is filed and after the split, one of the parties inherits some assets, get some assets from a parent that passed away, in that case it is highly likely that a court is not going to divide the inherited assets. And probably not even consider those assets in the division of property.
So there are number of different ways, this can be treated again on property division the court has broad discretion and by default everything is technically considered. But there are some main factors that need to be taken into consideration. How long is the marriage? When was the property inherited? And was that property commingled with marital assets? It is always recommended to hire a divorce lawyer to get an outcome you can be happy with.