Divorce inheritance questions sometimes come up as a couple begins the process of dividing their assets. Would an inheritance be considered the separate property of one spouse or could it be classified as a marital asset?
By WomansDivorce | Answers by Brette Sember, J.D.
In the majority of states, an inheritance is typically considered separate property and is not subject to division during a divorce. However, there are some exceptions to this rule, such as if the inheritance was commingled with marital property or used to benefit the couple or the family.
An example of commingling would be if inherited funds were deposited into a joint account and used for expenses for the family. Inherited property can also become transmuted (and converted to marital property) if the other spouse’s name is added to the deed on the inherited property. If an inheritance is converted to marital property, it will then be subject to division in the divorce.
Understanding how inheritance issues are handled in divorce situations can be crucial for those going through or considering a divorce. If you have received or are expecting to receive an inheritance, it is in your best interest to consult with a knowledgeable attorney who can help you protect inherited assets. Most lawyers offer a free consultation, so it would be wise to speak with a qualified family law attorney in your area before agreeing to any divorce settlement. You can get more information on how to connect with a local attorney here.
The following answers to questions from our visitors focus on some of the issues concerning how inheritance is handled in a divorce:
Gloria's Question: I stand to inherit my parent's 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 Replies: 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.
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 it's left in a will?
Brette's Answer: Inheritances are considered separate property which is not subject to distribution in a divorce, but you must keep the property separate.
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 you converted the home into marital property by adding him to the deed, or 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 increased value of the home. You need to see an attorney who can help you work this out.
Yvette's Question: We were married over 3 years ago and lived together for a total of 6 years. We were living in a home of his mother's when she passed away 6 years ago. The property went into probate and later was refinanced by both of us and both names were put on the Deed before we got married. We are getting divorce, but he is stating that the home was an inheritance. Is the property an inheritance or am I entitled to the home too?
Brette's Answer: It sounds like he converted it to marital property by adding you to the deed. You should discuss with your lawyer.
Yvette's Question: My father passed away and his will states that everything, including the house and property, are to go to me and never mentioned anybody else's name. But the attorney handling his will put everything in both my and my husband's name. Does that fact change things if we were to get divorced down the line?
Brette's Answer: Yes. This most likely converts the assets to marital assets. You need to talk to an attorney in your state who can review all the documents and facts and discuss how your state law applies.
Edith's Question: I inherited a home and it is deeded to me. If my spouse does a major improvement such as a $15,000 barn, can that change the ownership of the property in any way?
Brette's Answer: Inherited property is separate property but if your spouse helps to improve the property a portion of the increase in value becomes a marital asset.
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.
Roxie's Question: My husband and I bought a house with money he inherited. The house is titled in both of our names. Is the house now separate or community property?
Brette's Answer: Anything purchased during marriage is generally marital property, however there may be a wrinkle in your case since you used separate inheritance money to purchase it. Putting the property in both names likely converted the house to marital property however. Talk to an attorney who can help you see how property division would work in your case.
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 spent 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 consult with an attorney who will be able to go over the details of the situation with you.
Regina's Question: Our house was paid for with money that was willed to me by my father. Will my ex have any rights to the house?
Brette's Reply: It will depend 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 percentage of the increase in equity, but you would still likely get the money you put into as separate property. You will need to talk to an attorney though to be sure this is how your particular state would view this situation.
Donna: My husband filed for a divorce last month. My Dad 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 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 do 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.
Janice's Question: I've been married for 23 years. After 5 years my husband received inheritance. Within 2 years, he took $55,000 and paid off our mortgage. I was working and paying household bills. How would that affect our divorce settlement in court?
Brette's Answer: He converted it to marital property. The house and equity will be marital property.
Michelle's Question: My husband inherited money while we were separated. A relative was kind enough to tell me about this. Am I entitled to some of the inheritance?
Brette's Answer: No, inheritance is usually considered a separate asset no matter when it is received. Be sure to mention it to your attorney however.
Monica's Question: I've been married to my husband for 22 years and his father past away a few years ago. He told me he’s been getting an inheritance little by little and putting it into an "INHERITANCE" account. I believe he has been putting money into this account just so I can't touch it when I divorce him. Can he get away with that? I remember how much he got when his dad passed and the amount is a lot higher now.
Brette's Answer: It is possible to trace where funds came from so it doesn't matter what he says, he will have to prove the funds are an inheritance. Anything that is not, is marital property. Talk to an attorney to understand what is and is not marital property and how to prepare for your divorce.
Marie's Question: My husband inherited over $500,000 and put the money into a separate account. But the interest which is earned on this account is included on our joint tax returns, and we pay our taxes out of our joint checking account. Would his inheritance be considered marital property now because I had to help pay 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: It would be considered a separate asset if he kept the money separate. 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.
Mary's Question: My husband inherited over $200,000 in 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.
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.
Suzy's Question: I inherited money from my dad two years ago and put the money in a joint account with my husband. When his mother dies (which will probably within a year or two), he said he would put his inheritance in our joint account. I plan to divorce my husband within 1 year. Can a Divorce Settlement contain a provision about the distribution of a future inheritance?
Brette's Answer: You should talk to your attorney. This is a very unusual situation since there is no date certain for the inheritance at all and if your spouse died before his mother, he would not inherit at all. Anything your spouse obtains after divorce is not marital property and not subject to division. You need to talk to an attorney about how to protect your own inheritance and what kind of property distribution and/or spousal maintenance would be fair.
Patricia's Question: I inherited a house from my parents last year and put my husband's name on the deed. Within one week, my husband's ex-wife filed a civil suit against him for a $20,000 medical bill which she claims he agreed to pay 19 years ago. He's contesting this. Can she legally take my house?
Brette's Answer: You converted it to marital property so it is now his also. I would suggest you talk with an attorney. It's likely the lawsuit with the ex-wife will be settled if the case is not dismissed. You should also ask what the statute of limitations is on her claim.
Jayme's Question: I have been married now for a whopping 5 weeks. I am considering a divorce and currently my 3 children and I live in the house with my husband. This house is not owned by him or me, it is owned by his deceased Father and his Mother. Will I have a legal right to the house in the event of a divorce?
Brette's Answer: You probably have no interest in the house. It isn't owned by the deceased parents, but by their estate. And that should be distributed to their heirs, one of whom is presumably your husband. Unless the parents left an interest in the house to you, you don't own it and considering you've been married 5 weeks that seems unlikely. Talk to an attorney.
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.
Question: My ex husband is very ill and he is in the process of a divorce from his second wife of 11 years. If he passes away and hadn't changed his will, will my daughter get any inheritance? If so, how will it be divided? They have one son together as well.
Brette's Answer: If your daughter is in his will, she will inherit. If he writes her out of the will she gets nothing, unless she can contest it (very rare). If there is no valid will, his assets are divided according to state law which would give a portion to his children.
Question: Is a child of divorced parents entitled to any part of the father's estate? Even if the child has been adopted by the second husband?
Brette's Answer: If the child was adopted, then he or she is no longer a legal child of the biological parent and is not entitled to inherit. The biological parent could choose to include that child in a will, but otherwise there is no inheritance.
Nell's Question: To avoid paying future inheritance taxes on some property he was named to inherit, my husband instead bought each property for $1. By doing this, would the property be included in our divorce settlement or is it still considered inheritance?
Brette's Answer: If he bought the property, then technically it is no longer an inheritance and would be considered marital property.
Debra's Question: I am considering buying a home with my inherited funds and won’t be putting my husband’s name on it. Would he or his children be entitled to it if I were to die.
Brette's Answer: It depends on whether you have a will and who you leave your property to. If you leave it someone else, they get it. If you die without a will your spouse is going to inherit your property most likely.
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.
Stephanie's Question: My uncle died in August. He filed for divorce in April. When he died, my mother and grandmother were named as the beneficiaries to his life insurance. My mother is now being taken to court because his ex-wife wants everything, including a vehicle that was sold before his death. Does the ex-spouse have rights to all these things?
Brette's Answer: If a divorce is finalized, then in most states the ex is not entitled to inherit even if the will still names them. Your family should consult with an attorney who can get the details on the divorce, the will, and the insurance policy and advise you what to do.
Susan's Question: Our divorce was finalized 5 years ago. While we were married, I received an inheritance which he spent a good part of it. Now his parents have died, am I entitled to half of his inheritance? It was not in the final divorce. We were together for 25 years. I am starving and he is retiring.
Brette's Answer: No, You converted your separate property to marital property by letting him access it. Anything he inherits post-divorce is separate property.
Lisa's Question: We've been married for 14 years. He was previously married and divorced with adult children. He made his will when he was married to his ex-wife, naming her as the recipient and then his children if she were to pass. Is this will still valid and everything would go to his ex?
Brette's Answer: Whenever there is a divorce it is best to have a new will drawn up to reflect the new situation. He should have a new one made as soon as possible.
Chelly's Question: I found out by accident that my ex-husband left his home to me in his will. He died last November. The will was made out after we divorced and I am named in it, even though I was remarried by then. That was about 37 years ago, my question is... is there a certain amount of time that makes things being left in a will not legal?
Brette's Answer: No a will stays in effect unless it is revoked or destroyed. If your ex named you in his will after the divorce, you would be the beneficiary of whatever he left you. If the will was made before the divorce though, the provision is likely cancelled out by law because of the divorce.
Nancy's Question: My father is doing his will and he doesn't want my husband to be entitled to anything at all. How should this be worded?
Brette's Answer: A bequest goes to the person it is specifically left to in the will and is considered separate (not marital property). Your father should consult with an estate planning attorney to be certain his will meets your state requirements. Good luck.
Copyright WomansDivorce.com | Updated February 23, 2023