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Is inheritance always separate property in divorce?

A whole host of legal protections usually designate the inheritance of one spouse as his or her individual property, but depending on when the inheritance gift occurs and the choices that the receiving spouse makes surrounding how to store and use the assets of an inheritance, it is not always simple to determine what is and is not inheritance at all.

The specifics of each couple's case may make all the difference when it comes to inheritance. Generally, the law prefers to protect inheritance during divorce, but the receiving spouse's own financial behavior may make that difficult.

If the funds received in an inheritance remain separate from other funds that the couple holds, then it is often relatively simple to identify and protect inheritance during property division. This is particularly useful in states like California, where all marital property must receive equal division in divorce under community property law.

However, if the receiving spouse takes the funds and places them in an account with other funds available to the other spouse or commonly used for mutual needs in the marriage, then a court may have a very difficult time determining which funds are the inheritance and which are not. This commingling of assets may make it impossible to distinguish inheritance assets from other marital assets at all.

If you have concerns about protecting your inheritance during divorce, be sure to consider all the legal tools you have to protect your rights and priorities. An experienced attorney can help you carefully examine your marriage's financial circumstances and identify strong strategies you can use to protect yourself and defend your rights as you work toward a fair resolution to your complex divorce issue.

Source: FindLaw, "Inheritance and Divorce," accessed March 09, 2018

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