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How to Determine Whether an Inheritance Is a Marital Property in Divorce

Posted on in Division of Property

How to Determine Whether an Inheritance Is a Marital Property in DivorceMost properties that you obtain during your marriage are classified as marital properties in the event of a divorce, such as items you have purchased and the income you have earned. Gifts and inheritances are the exceptions to this rule. Inheritances are assets given to you through an estate planning document, such as a trust or will, or after the probate process. Even if you inherit an asset while you are married, it is usually a nonmarital property as long as you can prove that the person who gave it to you intended for you to be the sole owner of the property. However, your decision on what to do with a property after you inherit it can make it marital property.

Commingling and Transmuting

An inherited property can become marital property if you commingle it with other marital properties or involve your spouse in its ownership or management. For instance:

  • Inherited money becomes marital property if you put it into a joint account with other marital money; or
  • Inherited real estate becomes marital property if you refinance the property and your spouse cosigns on the agreement.

In these situations, your inherited properties are either transmuted into marital properties through your actions or become indistinguishable from your martial properties because they are commingled. As marital property, your inheritance could be divided between you and your divorcing spouse or given to you in exchange for other marital properties. As nonmarital property, your inheritance would not count towards the equitable division of property.

Protecting Your Inheritance

The best way to protect your inheritance from divorce is to keep it separate from your marital finances. Inherited money should be placed into a separate account that only you have access to. You can withdraw from that account if you need money to pay for personal or marital expenses. You should be cautious about using marital income towards the repair or upkeep of an inherited property because your spouse could argue that their money was used to invest in the property. You can take further precaution by including the inheritance in a prenuptial or postnuptial agreement, stating that the inherited properties would not be part of the division of property.

Contact a Kane County Divorce Attorney

Illinois law presumes that properties from your marriage are marital properties unless you can prove that your ownership predated the marriage or the properties were gifts or inheritances. A St. Charles, Illinois, divorce lawyer at Goostree Law Group can show the court why certain properties should be excluded from the division of property. Call 630-584-4800 to schedule a free consultation.


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