When a marriage breaks apart, it can be heartbreaking for both parties involved. There’s a lot of questions about how positions and assets should be divided up. If there are kids involved, divorce is even worse as custody must be determined between the two parents and a separation lawyer. Dividing up assets in determining the custody of children can be the worst part of divorce. There are often more than just bad feelings, but the real battle begins when it comes to how much money is divvied up.

What can one spouse realistically claim as their own? Are there any retirement savings they both contributed to? Any money in a savings account? Was there money put into a rainy-day fund? Other questions persist like who was the main breadwinner? Who made the most money and contributed the most towards these funds? And the big topic of discussion for this article, can one spouse claim part of an inheritance fund they received while married?

This isn’t a cut and dry question-and-answer. Inheritances, while often given to the direct living air, are often shared with the rest of the family. Even if an inheritance is given before the marriage, that money, property, and/or assets are often split within their own family. Inheritances can often find their way mixed in with other assets that were acquired during the marriage. Let’s take a look at some common issues that come up regarding inheritance and divorce.

The Basics of Marriage Inheritance

The law essentially states that inheritances are not marital property that can be divided up. It is not considered equitable distribution between the spouses because they are separate property that belongs to the spouse who inheritances left to. This is why in most circumstances and the inheritance is not legally able to be divided up. As it goes with just about anything, there are some exceptions to the rule you should know about.

In inheritance can lose its separate property clause if the person who received the inheritance decides to deposit it into the joint bank account that both parties used. This money is often used for joint marital expenses and as such the inheritance is no longer separate property but a joint co-mingling of inheritance. How the inheritance is used can also determine whether the divorcing spouse can make a claim on it.

For example, if you use your inheritance to fix up the home that you both own, rather the primary residence you both share and pay on, then the inheritance can also lose its separate property claim status as well. So, in reality, if you hope to keep your inheritance to yourself in the event of a divorce, put it in a separate bank account and do not commingle funds. Don’t use the funds to buy your spouse a car or to fix up the primary residence.

When you start spending that money on your spouse, they begin to cling to it and it loses its separate property clause. In the same vein, don’t use it to pay off debts that you and your spouse have together. Anything that benefits your joint marital assets can change your inheritance from being separate property into being able to be divided at the point of divorce. Of course, most couples don’t think about this sort of thing before getting married and gladly share their inheritance money with their family.

What About Inheritances Gained Before Marriage?

What do you do when you enter marriage holding wealth of your own? This wealth may come from yourself or you could have inherited it when you were younger. In this situation, you might have to look at what your individual state says about how these monies should be treated after a divorce. In the same way that was mentioned above, if you commingled your inheritance money and/or it was deposited into the joint marital account, then it’s considered joint marital property.

If you kept your inheritance separate from any joint accounts and didn’t commingle, then it’s considered separate property and can’t be divided at the divorce. You would get to keep all the money that you inherited. This is why couples shouldn’t always automatically combine all their assets and all the money they’ve made or inherited from before the marriage. They would need to protect themselves in the event of a divorce.

Entering a prenup agreement before marriage is the best way to keep all of your assets before marriage safe and sound. This is especially true if your assets are substantial. This is difficult for a lot of couples because nobody ever expects that they’re going to get divorced, especially before the marriage happens. It might even be considered an insult if one party asks their fiancé to sign a prenuptial agreement. Still, you must protect your assets at all costs.

Co-Mingling a Divorce Inheritance

If you’re getting a divorce and you can prove that you didn’t intend to commingle your funds to a judge, you may be able to prevent your inheritance fund from being divided. In short, there is a possible way for your inheritance to be considered separate property. This will be very difficult to do because the presumption of the court is that if you shared your money, then you intended to share it. There are a few ways around this even if there’s a high burden of proof.

Divorce laws are difficult to understand and they vary by state. If you’re unsure of what to do in your desperate to keep your inheritance money for yourself and to not be divided, you should contact an experienced divorce lawyer to help you work out your case. Don’t go about the situation on your own thinking that you’ll be able to handle it. Experienced divorce attorney near you will be able to guide you through the process and help you get what is rightfully yours.

Don’t leave it to chance and don’t risk losing out on your inheritance or large sum of money that you earn before you were even married. The burden of proof will be on you to prove your case to the judge.