Divorce Inheritance Issues
Answers From The Expert
Divorce inheritance issues often come up when a couple starts
dividing their assets. Is an inheritance considered separate
property or is it a marital asset? Determining how the asset it is categorized and
whether it is subject to division will depend on whether the funds
were kept separate and if the assets have been converted. The following questions address some of
the issues concerning how inheritance is handled in a divorce:
Will he be entitled
to any of my inheritance?
Gloria's Question: I stand to inherit my parents
house and assets when my 80 year old mother passes away. I'm afraid that if I
don't get a divorce before she dies, that my husband will be entitled to half of
my inheritance. Is this true? Brette's Answer: If you receive an inheritance during
marriage and keep those assets or funds separate (such as in a separate account)
and don't convert them to marital assets (such as by putting them in a joint
account, or using them to pay for marital assets), they are separate property
when you divorce.
Can my husband get the house even if its left to me in a will?
Mary's Question: My brother has a will and he is leaving me his home if he passes away (it will only be left to me in the will). If I divorce, can my husband take the house from me even if its left in a will.
Brette's Answer: Inheritances are considered separate property and not subject to distribution in divorce, but you must keep the property separate. » Return
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Does he have any claim
to a house that I inherited?
Diana's Question: I inherited a home before our marriage that
was valued at 100k when we got married. 20 years later, the house is worth
1,100,000 and he thinks the 1,000,000 increase in value during our marriage
should be split evenly. I have told him I inherited a house, I keep the house no
matter if it gained or lost value this house is mine. Who is correct?
Brette's Answer: Neither of you. If he contributed to the upkeep
of the house, helped make improvements to it or helped pay a mortgage or loan on
it, he would be entitled to a portion of the increase in value. You need to see
an attorney who can help you work this out.
What if we bought a home with money from
selling a house I inherited?
Rachel's Question: I inherited a home during the marriage from my
father. We then sold the home, and purchased a single family home. I put
$80,000.00 as a down payment and spend another $60,000.00 for upgrades.
Does my husband have rights to the full equity in this home.
Brette's Answer: If the home you bought is in your name alone
and he has not helped pay the mortgage or keep it up, then he probably has no
rights. You should talk to an attorney who can go over the details of the
situation with you. » Return
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Topic: Is the house considered my separate property?
Regina's Question: Our house was paid for with money that my
father gave me. Will my ex have any rights to the house? Brette's Answer:
It depends on what has happened since you got
married. If the home was purchased using money that was not marital funds, such
as an inheritance or gift, you need to be able to directly trace the
purchase. If you jointly paid a mortgage or if he helped with upkeep
around the house, then he is entitled to a portion of the increase in equity,
but you would still likely get the money you put into as separate
property. You need to talk to an attorney though to be sure this is
how your particular state would view this situation.
Should I pay off the mortgage with my inheritance if we're divorcing?
Donna's Question: My husband filed for divorce last month. My father passed away after he filed for divorce and I am coming into a substantial amount of money from my inheritance. Is my husband entitled to any of these monies? He has also asked me to pay off the mortgage on our martial home which at the moment is up for sale & almost in foreclosure. Is this a good idea since for my inheritance? If it is used for the martial house wouldn't he be entitled to more of the sale of the home?
Brette's Answer: Do not anything until you talk to an attorney. Inheritances are separate property and not subject to division - unless you convert it to a marital asset and using it to pay marital debt would definitely do that. Good luck.
Will I get any of the inheritance
he received during our separation?
Michelle's Question: My husband inherited money
while we were separated and waiting for the divorce to be final. A relative was
kind enough to tell me about this, am I entitled to some of the inheritance?
Brette's Answer: No, it is separate property in
most cases. Be sure to mention it to your attorney however. » Return
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Does paying taxes on his inheritance convert it to marital property?
Marie's Question: My husband inherited over $500,000 and this money was put into a separate account. Yet, the interest from this account is on our joint tax returns, causing us to have to pay taxes (from our joint checking account). Is this inheritance now marital property because I was involved in paying taxes on it, or does it remain separate property. Also, I have many things accumulated during 25 years of marriage stored at the house he inherited. Does the house remain separate property?
Brette's Answer: If he kept the money separate, it is a separate asset. If you actually helped pay the taxes on the interest, then you have an interest in that amount of the funds. Whether a home he inherited is separate property will depend on many factors, so you should discuss this with an attorney.
Will his inheritance affect our
divorce?
Marie's Question: My husband has received over
$200,000 in inheritance over the last 15 years (we have been married for 24
years), but he has refused to put my name on the investments. I feel this has
been very unfair as I have been supporting the family. Will his inheritance make
a difference in our divorce?
Brette's Answer: An inheritance is separate
property and he can do what he wishes with it. However, the court will
definitely take that personal wealth into consideration when determining how to
allocate the debts and assets of your marriage. You should talk to an attorney. » Return
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Shouldn't his inheritance have affected our settlement?
Molly's Question: My husband of 20 years cheated on me, then left me one month after inheriting almost a million dollars. I didn't have money for an attorney so he got everything. Now I am drowning in debt. Is it too late to take legal action?
Brette's Answer: In most states inheritances are separate property and are not subject to division in a divorce. However, his financial resources would have had an impact on the amount of alimony ordered and the division of marital property. You should consult with an attorney.
Do
I owe him if he used his inheritance to remodel the house?
Julie's Question: My husband inherited money when
his mother passed away and put that money into upgrades of the house we
own. We are now getting divorced and he claims I owe him all that money
back because it was an inheritance. How does this money get dealt with in a
divorce?
Brette's Answer: Money from an inheritance is
separate property, however it sounds like he converted it to a marital asset by
using it to upgrade your marital home. You need to talk to a lawyer who can go
over your state laws with you, but it sounds as though this will proceed through
property division in the regular way. » Return
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Is my child
entitled to any of her dad's inheritance?
Elizabeth's Question: Does my child
receive 20% of everything her grandmother left her dad when she
died? How do I know if she left our child something in her
will for her grand child? It been a year now, before she died she
said she is going to put her grandchild in her will. Brette's
Answer: I'm not sure why you think your daughter would be
entitled to 20% of her father's inheritance. He is obligated to pay
child support and while a large inheritance could impact the amount
of child support, she wouldn't personally be entitled to a payment
since child support is paid to the other parent.
The grandmother's will would be probated in the county of her
residence and would be public record. If your daughter was an heir
under the will, the court would have contacted you if you are her
custodial parent. » Return
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Would property be considered an inheritance if he bought it for $1?
Nell's Question: My husband paid $1.00 for each piece of property he was going to inherit to keep from paying inheritance taxes. This was before we separated. Will this still be considered inheritance or will it be part of our divorce settlement?
Brette's Answer: Well if he technically bought the property then it is not an inheritance, and therefore it is marital property.
Would he be entitled to my estate if I die after we get divorced?
Haydee's Question: After my divorce, will my ex be entitled to any of my estate when I die without a will?
Brette's Answer: No. Once you are divorced, there is no right of inheritance. » Top of Divorce Inheritance page
Related Articles:
Who gets what in a divorce?
Divorce Property Issues
Also see:
More questions and answers
Ask the Legal Expert a question
Brette Sember is a former family and
matrimonial attorney and mediator, nationally recognized expert, and author of
many books including
The Divorce Organizer & Planner,
No-Fight Divorce, and
How To Parent With Your Ex.
For more information about Brette, see www.BretteSember.com.
This column provides general information about
the various aspects of divorce. It is not intended to take
the place of legal counsel and should not be considered personal legal advice.
For specific recommendations concerning your
situation, please retain experienced legal counsel. WomansDivorce.com and Brette Sember disclaim
any liability from any claim arising from any information contained
in this column. This column is not a substitute for legal advice.
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