Inheritance and Divorce

Discover if a court can divide your inheritance in your divorce.

Does All Property Get Divided When I Get Divorced?

Not exactly. For purpose of divorces, the law usually classifies property as “marital” or “separate.” Generally, marital property is subject to division among the spouses; separate property is not. This is true if you reside in a “community property” state (such as Arizona), in which divides property on a fifty/ fifty basis, or an “equitable distribution” state (such as Colorado), in which divides property based on what the court deems is just under the circumstances.

Is My Spouse Entitled to My Inheritance in Divorce?

That depends on several aspects, including where you reside. Each state’s divorce laws are going to regulate how to handle inheritance, in equitable distribution states and community property states also.

In profound majority states, an inheritance is thought of as separate property, belonging solely to the spouse that received it and it can’t be split up in a divorce. This holds true if a spouse received the inheritance prior to or throughout the marriage. But in states such as Vermont, for instance, courts may consider an inheritance to be dividable in divorces (unless of course you are able to convince a judge that it should not be).

Even though your state may originally see your inheritance as separate property; your activities can make it become marital property. Often that occurs intentionally in what is known as a “transmutation of property.”

Transmutation of Property

An instance of an intentional transmutation of property from separate into marital is in which a spouse falls heir to a home, then places the other spouse’s name on the title. Each spouse moves in and divides the cost of living there. In that case, should a divorce happen, the inheriting spouse is going to be hard pressed to persuade a judge that the home was never intended to become marital property.

However, say the inheriting spouse never places their spouses name on the deed, and neither of the spouses lives in the house throughout the marriage. At some point, nevertheless, the non-owning spouse provides to improvements in which increases the home’s value. At the time of divorce, a judge might establish that—even though the home itself might not be marital property—the increased value specifically because of the improvements is a portion of the marital estate, and consequently subject to division among the spouses.

The most general instance of changing an inheritance to marital property is when the inheriting spouse combines their inheritance with marital assets. This could be intentional, but usually it happens erroneously.

But if you believed that putting that capital into a joint account was just for convenience, and that it would always stay solely yours alone, you might have put yourself behind the stereotypical eight ball. By combining the inheritance with marital capital, you’ve probably converted it into marital property. You can challenge the court that was never what you wanted, but you are going to have an uphill battle.

Can I Claim My Ex’s Inheritance Received Following Divorce?

Sharing a spouse’s inheritance following divorce is a washout, unless your divorce judgment particularly addresses that issue.

Having said that, there are situations whereas an ex-spouse’s after divorce inheritance might come into play. When you’re receiving alimony or child support, you could be able to request that a court for increasing the support amount, on the basis of their inheritance or any interest income the principal is earning.

Courts often allow changes to support—both an increase and decrease—for various reasons, like losing a job, a spouse or child becoming incapacitated, or a spouse’s significant pay increase (again, subject to your state’s laws).

You are first going to have to see if your state sees an inheritance as a possible basis for a change request. When it does, you might have viable grounds to pursue an increase in support. Obviously, this depends in large degree on how considerable the inheritance is. Your best bet to be successful is when the inheritance has considerably enhanced your ex-spouse’s quality of living.

Prenup Agreements and Inheritance

Spouses are using prenuptial agreements increasingly more to safeguard assets they’ve acquired before getting married. This is especially true on marriage number 2, in which the spouses tend to be older and might want to safeguard assets they have set aside for their children.

A prenup is an agreement that can often overrule state divorce laws on a lot of matters. A prenup gives the couple a chance to settle ahead of time how an inheritance (and other property) are going to be dealt in the future, including should a divorce happen.

But be wary, there are very stringent rules overlooking the legitimacy of prenups, so make sure to consult a skillful lawyer to help you create and/or examine one.

Source:

1. Joseph Pandolfi, R. J. (2020, April 9). Inheritance and divorce. www.divorcenet.com. Retrieved May 11, 2022, from https://www.divorcenet.com/resources/inheritance-and-divorce.html

Choose the Right Divorce Lawyer in Arizona

Regardless of the choice you make, it’s important you make the best choice for you when hiring a divorce attorney. Remember: The decisions you make now can affect your future. Ultimately, choosing the best lawyer will depend on which lawyer feels best for you and your situation.

If you want to learn about Michelle N. Ogborne and see if she is the right attorney to represent you in your collaborative divorce in Arizona, contact us today!