Is My Spouse Entitled to My Inheritance After Divorce?

When a couple divorces, they must address several issues. One issue that can cause quite a bit of frustration and anger is property division. Deciding which spouse should receive the property the couple has accumulated during the divorce can complicate an otherwise simple divorce.

However, when you add an inheritance into the situation, property division can become more complicated. What happens when a spouse inherits property during a marriage? Does the other spouse have a legal claim to any portion of the inheritance?

Florida Equitable Distribution Laws in a Divorce Action

Florida is an equitable distribution state for divorces. What that means for a couple is that property is not necessarily divided equally, as in community property states like California. Property is divided “fairly” between the spouses.

A “fair” division of property could be a 50-50 split of assets. However, that is not always the case. There are cases in which the court may decide that a “fair” distribution of property during a divorce is a 60-40 split or some other percentage.

However, equitable property division laws apply to marital property only. Non-marital property or separate property is not subject to property division laws.

Marital Property vs. Non-Marital Property

Marital property is typically any property that the couple acquires during marriage. All marital property is subject to property division in a Florida divorce action.

Florida statutes define non-marital or separate assets as the property received by either spouse separately by bequest, descent, non-interspousal gift, or devise. Therefore, an inheritance is considered a non-marital asset. A spouse should not be entitled to any portion of another spouse’s inheritance.

However, there are exceptions to this rule. If a spouse is not careful, he or she can cause an inherited asset to become marital assets. If so, the inheritance could be subject to Florida property division laws.

Commingling of Inheritance and Divorce

A spouse must keep inherited assets separate and apart from marital assets to prevent the assets from being subject to property division laws. If the spouse commingles inherited assets with marital assets, the other spouse may have a claim to the inherited property. Commingling assets means mixing the separate property of a spouse with marital assets.

There are many ways that a spouse can commingle an inheritance with marital assets.

Titling inherited assets jointly with a spouse makes the asset a marital asset. For instance, a wife inherits a boat from her parents and re-titles the boat in her name and her spouse’s name. The boat is now marital property.

Likewise, using inherited assets to purchase other assets that are titled jointly with the other spouse makes the purchased asset a marital asset.

For example, a spouse inherits a motorhome from his parents. He sells the motorhome and uses the funds to purchase another motor home in his name and his wife’s name. The motor home now becomes a marital asset.

Another example would be using marital assets to improve an inherited asset. If a wife uses funds from a joint account to repair or make improvements to an inherited lake house, the husband may have a valid claim that the lake house is now marital property because the funds to improve the lake house were marital assets.

Commingling inherited property can be very subtle. A spouse inherits a savings account or stock account from a family member. The spouse maintains the account in his name only.

However, the husband allows the wife access to the account and, with his permission, the wife begins using the account to invest money. Both spouses continue to use the account for the next several years. The account may now be a marital asset.

Protecting Your Inheritance From Your Spouse

Once the property is commingled, it typically cannot be separated. The entire asset becomes marital property and subject to equitable division. Judges may try to separate commingled property, but the process can be very complicated.

For instance, if a spouse deposited inherited funds into a joint account, the judge may allow the inherited funds to be separated to avoid equitable division. However, the petitioning spouse must have bank records that explicitly identify the inherited funds and marital funds.

Because it is so easy to commingle funds without realizing what you are doing, it is best to talk to a divorce lawyer about your inheritance. By taking proactive measures, you can ensure that your inheritance is protected should you and your spouse decide to divorce.

Before marriage, you can use a prenuptial agreement to protect inheritances. If you are already married, you may want to consider a post-nuptial agreement to protect your inheritance. Your lawyer can also advise you on other ways to keep your inherited assets separate.

Contact Our Divorce Law Firm in Orlando, FL

Contact the experienced Orlando divorce lawyers at McMichen, Cinami & Demps today for legal assistance. Contact our Orlando, FL office at (407) 898-2161 to schedule a free consultation.

McMichen, Cinami & Demps – Orlando Office
1500 E Concord St
Orlando, FL 32803