Will a divorce let your spouse take your inheritance?

On Behalf of | Feb 15, 2022 | Divorce |

You know well that you and your spouse are going to need to split up your assets when you get divorced. This is one of the key points of almost any divorce case, second only perhaps to splitting up time with the children.

But you don’t want to share the inheritance that your parents left to you. You’re fine with splitting up marital assets that you bought together or income that you earned while you were married. It’s just that you believe that inheritance should stay with you. Will it, or can your spouse take it?

It depends how you kept the inheritance

Much of this will hinge on where you store the inheritance and who had access to it. If it was in a separate account and your spouse never used it, and you didn’t use the money to pay any joint bills or make joint purchases, then you can likely claim that it is still just yours. Generally, an inheritance is considered separate property. Your spouse doesn’t automatically get a claim to a gift that was given directly to you alone, even if you were married when you got it.

However, if you use the money to make joint purchases or if you put it in an account where you shared it with your spouse, you have commingled the inheritance. When you do this, you give them the right to claim part of that inheritance. They’re not going to take the whole thing, but you have to share it with them as you divide up all of your other assets.

Another thing to keep in mind is whether or not you have a prenuptial agreement or a postnuptial agreement. If you do, it can offer you extra protection by stating that the inheritance is supposed to stay with you. As long as your spouse agreed to this and the whole thing was executed properly, then you shouldn’t lose that inheritance. But if you don’t already have a prenuptial agreement or a postnuptial agreement, it is unlikely that your spouse is going to sign one, so this is a type of protection you had to set up long ago.

Protecting your rights

You’re going through a complicated divorce and you and your spouse don’t agree on everything, then it is very important to know what options you have to protect your rights.