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What Happens To Inheritance During A Divorce?


If you are currently going through a divorce or are contemplating one, it can be overwhelming trying to determine how a divorce will affect the distribution of your assets. Chances are, a great amount of work went into building the life that you have with your partner, and dismantling that life piece by piece is rarely any easier. If you received a large inheritance before or during your marriage, you may have concerns about how that will be treated in a divorce, and whether it will be subject to division. Of course, like most legal matters, we can’t give you a yes or no answer without having more information. The best way to ensure that you are receiving accurate information that pertains to your specific case is to consult with an experienced Florida divorce attorney. However, in this article we will provide you with some more information so that you can have a general idea of how your inheritance may be affected.

Is the Inheritance Marital Property?

The most important question to ask when determining whether your inheritance will be safe or subject to division is whether it is marital property. Marital property generally includes any assets or debts acquired during the course of the marriage. However, there are exceptions. Any property that is not marital property is separate property. Only marital property is divided during a divorce, while separate property is insulated and remains the property of the spouse who owns it. Inheritances received by one spouse before or during the course of the marriage are generally treated as separate property. There are situations though where an inheritance which would have been separate property is instead converted to marital property and does become subject to division.

Is there a Prenuptial or Postnuptial Agreement?

The first thing courts look for when determining whether an inheritance is separate or marital property is whether there is a legal agreement, such as a prenuptial or postnuptial agreement that answers the question for them. Many times, if a family plans to leave a large inheritance to their child, they will insist that the child get a prenuptial agreement protecting their inheritance as separate property before entering into a marriage. Other times, upon learning that they will be receiving an inheritance after entering into a marriage, a spouse will execute a postnuptial agreement classifying the inheritance as their separate property. If a document like this exists, it will control and the inherited assets will remain separate property.

When Does One Spouse’s Inheritance Become Marital Property?

In the absence of a governing agreement, the court will look for evidence of whether the inherited assets were treated as separate or marital property by the couple. Inheritance that was kept in a separate bank account and was not used for things related to the marriage, such as improving the household, will likely be treated as separate property. However, if the inheritance was deposited into a joint account or used for the couple’s benefit, it may be treated as marital property.

Talk to an Orlando Family Law Attorney

If you are considering a divorce in Florida, or are currently going through one, and are concerned about how that could impact your inheritance, it’s important to talk to an experienced Orlando family law attorney. Contact the Greater Orlando Family Law Firm and schedule a consultation today.

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