Is Your Ex Entitled to a Portion of Your Inheritance?

Is Your Ex Entitled to a Portion of Your Inheritance?
Oct 04, 2019
The Harr Law Firm

Will with gavel and cashDivision of funds and assets is one of the more complicated and time-consuming parts of getting a divorce. This is especially true in high-asset divorce cases, when there is more to be divided. If you’ve received a large inheritance from a family member that passed away, odds are, you feel like those funds or assets should be yours, and yours alone. So, is your ex entitled to a portion of that inheritance in your divorce? There are several factors that impact the answer. Keep reading to learn more.

Who Was in the Will?

First and foremost, whose name is actually listed in the will? If both of your names are on the document, then you are both entitled to a portion of it in the divorce, and there aren’t really any ways to get around that. However, if your ex is not listed, and you are the only heir for that portion of the inheritance, then you may have grounds to retain that inheritance after your divorce.

When Was It Received?

The timing of your inheritance will matter as well, in some cases. If you received your inheritance before or during the marriage, whether that asset is considered personal or marital property will depend largely on the answer to the next question (see below). Now, if you received inheritance after your marriage, then your ex may or may not be able to claim a portion of that inheritance, depending on your exact circumstances.

Typically, in order to claim they have a right to an inheritance received after divorce, both of the following would have to be true:

  1. You were ordered by the court to make child support or alimony payments, and
  2. You received a very large sum of money that significantly alters your financial situation and your ability to make those support payments.

If both of the above are true, your ex may decide to file a claim with the court, requesting higher support payments based on your inheritance income. However, if they do not do this, then you are not required to give them any portion of your inheritance.

Were the Funds or Assets Comingled?

As mentioned above, if you received your inheritance during or even before your marriage, your ex’s rights to the inheritance will depend on whether or not it was comingled with marital assets. So, if you received money from a deceased relative, and those funds were placed into a joint account, that money is now considered marital property, and will be divided accordingly. If you received a physical asset, such as a house or vehicle, and you put both your name and your ex’s name on the title, it is marital property, and will be included in asset divisions.

On the other hand, if you received money and put it in a private bank account that was only in your name, those funds are yours alone. Or, if you received a car or house, and you only put your name on the title when you inherited it, it won’t be included during asset divisions in your divorce.

Were the Funds Intended to Be Shared?

This is where things start to get tricky. Let’s assume that you received an inheritance with only your name in the will, but comingling of the inheritance occurred. In most cases, this would make the inheritance marital property, as mentioned above. However, in some cases, if you can prove that the inheritance funds were never intended to be shared with your spouse, then you may be able to retain the inheritance’s “separate property” status.

This can be extremely difficult to do, and you will need to discuss the matter in detail with your family law attorney to determine if it is even feasible. If you wish to pursue this angle, the burden of proof lies with you, and you will need to be able to provide significant evidence that the presumption of shared funds is not true in your case.

State Laws Matter

Finally, please be aware that the divorce laws pertaining to inheritances vary widely from one state to the next. And, in cases where the circumstances fall into a bit of a gray area, it may depend largely on which judge handles your case. Be sure to consult your attorney regarding your state laws, and ask whether or not they know of local judges who may be favorable to the circumstances surrounding your case.

If you would like to set up an appointment for a consultation regarding your divorce, and how your inheritance might be handled during that divorce, please reach out to us.

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