In general, your spouse does not have rights to a part of your inheritance in a divorce. The court typically treats direct gifts, like an inherited property or assets, as separate or “non-marital” property from your spouse. However, the law is always a little more complicated than this!
When is my inheritance at risk during my divorce?
Your inheritance will be at risk if the court considers it marital property. The most common reason for this would be if you commingle your inherited assets with your spouse’s.
Commingling can look like:
- Your grandma left you her home after she passed. You decided to sell the property and used the proceeds to purchase a new home with your spouse. Both spouses are on the title to the house and you both contribute towards the mortgage payments. You did not sign an agreement to keep the house as your separate property.
- Your uncle gifted you $10,000 and you deposited those funds into a joint account with your spouse. You spend that money on things for the family.
- Your mother left you her expensive jewelry. You sell the jewelry and use the proceeds to buy a new car with your spouse on the title.
In contrast, here are some situations where your inherited assets can be safe from the divorce process:
- Your grandma left you her home and you did not include your spouse on the deed. You rent the home and deposit the proceeds into a separate account that you own. You do not pay for anything relating to the house from the money you earn from your paycheck or joint accounts with your spouse.
- Your uncle gifted you $10,000 and you deposited the funds into an account of which you are the sole owner. You do not use that money to buy things for the family.
- Your mother left you her expensive jewelry. You hold onto the jewelry, continuing to wear it to this day.
How do I protect my inheritance from divorce?
To put things simply, if you keep your inheritance separate from your spouse and your marriage, it will be considered your non-marital property in a divorce.
Otherwise, you can work with your divorce attorney to try and prove the inheritance was gifted directly to you and can trace the assets back in time. Tracing assets can be extremely difficult, but it is possible in some cases and can protect your inheritance from your divorce. Another way to protect inheritance is by you and your spouse signing an agreement that any funds from the inheritance will remain your non-marital property.