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Kevin O'Flaherty

When Does an Inheritance Become Marital Property

When does an inheritance become marital property? It's a question with profound implications, especially in a divorce. Legally, an inheritance is personal until it isn't—mixed with joint funds or used for everyday expenses. This guide will walk you through the 'dos and don'ts' of protecting your inherited wealth from becoming marital property, informed by state laws and practical strategies.

Key Takeaways

  • Inheritance is initially considered separate property but can become marital property through commingling or use for joint expenses. The process varies by state laws and whether the state is a community or common law jurisdiction.
  • Maintaining inheritances in separate bank accounts, proper record-keeping and documentation, and legal confirmation, such as prenuptial agreements, are crucial in preserving the separate status of inherited assets in marriage.
  • Legal intervention, such as drafting prenuptial agreements or seeking divorce counsel, is essential to protect inheritances during marital disputes and divorce proceedings, especially as inheritance can be reclassified as marital property if not correctly managed.

Determining the Nature of Inherited Assets

An inheritance is typically perceived as the recipient's individual property, separate from the marital estate. However, the landscape becomes intricate as it's not always clear-cut whether an inheritance remains separate property or becomes marital property. Laws vary by state, and in some cases, inheritance can transform into a marital asset under specific circumstances.

Although there's no legal obligation to share your inheritance with your spouse, it doesn't mean it's immune to disputes. The spouse's claim to the inheritance can stir legal controversy in a marriage. This underscores the importance of understanding the nature of inherited assets and how they can transition between separate and marital property.

The Initial Status of Inheritance Money

From the outset, inheritance money is seen as separate property upon receipt by one spouse. This is, however, contingent on the funds remaining separate and untouched by marital funds. If the inherited money is held in a separate account under the recipient's name, it retains its separate property status.

But what happens when this money mingles with marital assets? The status of the inherited funds may then be at risk, potentially transforming from separate property into marital property. This is why it's crucial to maintain inherited money in an individual account.

State Law's Impact on Inheritance

State laws play a significant role in determining whether an inheritance is separate or marital property. Depending on where you reside, you could be living in a community property state or a common law state. Community property states consider most assets acquired during the marriage as jointly owned, with some exceptions for inheritances left to one spouse.

Conversely, standard law considers an inheritance one spouse receives as separate property unless it has been commingled with marital assets. Understanding these laws is crucial in handling inherited assets to prevent them from becoming marital property.

Transition from Separate to Marital Property

It is crucial to understand that inheritance can transition from separate to marital property under certain circumstances. This process, known as transmutation, can occur when inherited assets inadvertently mix with marital assets, altering the property's status.

Depositing inheritance money into a joint account is a common scenario. It can blur the lines between separate and marital property. Similarly, using inherited funds for joint expenses like paying off a marital home can cause these funds to lose their character as separate property.

Even the appreciation in the value of property acquired through inheritance due to contributions or efforts of either or both spouses can lead to the property being considered marital.

Commingling Inherited Funds with Joint Bank Accounts

Commingling is a term that describes the mixing of separate property, such as inheritance, with marital assets. It's a typical turn of events that can inadvertently lead to the inheritance losing its separate property status.

An inheritance can become marital property in Illinois if received during a common-law marriage. This can happen if the inheritance becomes marital property due to being subsequently commingled with marital assets. Some common ways in which commingling occurs include:

  • Depositing inherited money into a joint bank account
  • Using inherited funds to purchase property jointly with your spouse
  • Using inherited funds to pay off joint debts

These actions can alter the property status from separate to marital, significantly impacting the division of assets in the event of a divorce.

Using Inheritance for Marital Expenses and Joint Property

Using inherited money for marital expenses or joint property can shift the status of these funds. While inheritances are typically categorized as separate property when initially received, their status can change based on how they are used.

Depositing inherited funds into a joint bank account and using them for marital purposes can transform them into shared marital assets. Furthermore, if inheritance is used to improve marital property or to start shared business ventures, it can become commingled and be classified as marital property.

Preserving Separate Property Status in Marriage

While the journey from separate to marital property may seem daunting, there are steps you can take to ensure your inheritance remains separate. One effective way is by creating separate bank accounts for premarital savings and inheritances.

If inherited funds are used to purchase property, it's essential to title the property exclusively in the inheriting spouse's name to prevent it from becoming marital property. Additionally, creating a trust can add an extra layer of protection for inherited assets, reinforcing their status as non-marital property.

To ensure that an inheritance remains separate property, it's critical to:

  • Keep detailed records and documentation
  • Take steps to prove the source of the funds
  • Seek legal confirmation to preempt disputes in the event of a divorce.

Establishing Separate Bank Accounts

Depositing inheritances into a separate bank account in the inheriting spouse's name is crucial in keeping them as separate property. This step prevents the funds from being considered commingled with marital assets.

Maintaining the inheritance in a separate account ensures it remains non-marital property. This action can be critical in preserving its status as separate property.

Documentation and Record-Keeping

Maintaining comprehensive records and documentation of inheritance is crucial for substantiating its status as separate property during marriage. A separate account for inherited funds serves a dual purpose: it protects the inheritance from claims by a spouse's creditors and aids in better documentation and tracking of its separate property status.

Legal Agreements and Their Role

Legal agreements such as prenuptial agreements can play a pivotal role in preserving the separate status of inherited assets. These agreements can ensure that inherited assets remain the property of the inheriting spouse, separate from marital assets.

A prenuptial agreement can shield an inheritance from being considered marital property by incorporating explicit terms regarding its separate nature. Formulating a prenuptial agreement that includes inheritance requires a fair and just attitude and strict adherence to the necessary legal protocols.

The protection offered by prenuptial and postnuptial agreements extends to premarital assets and encompasses potential future inheritances.

The Protective Power of Prenuptial Agreements

Prenuptial or postnuptial agreements can play a crucial role in maintaining the separate status of inherited assets by specifying their treatment during the marriage. This provides clear definitions and protections for separate property in the event of a divorce.

Prenuptial agreements can include specific provisions regarding anticipated inheritances, ensuring their categorization as separate property and safeguarding them from division in potential future divorce proceedings.

Navigating Inheritance Issues During Divorce Proceedings

Divorce proceedings can further complicate the matter of inheritance and marital property. It's crucial to understand the division of marital and separate property and to seek legal counsel to protect your inheritance.

A family law attorney can help you understand how state laws may impact the status of inherited assets during divorce proceedings. They can also gather the necessary evidence to support the claim that inheritance is a separate property, aiding in its protection.

Lawyers specializing in divorce can offer tailored guidance and advice to help clients navigate the complexities of inheritance issues and ensure a just division of assets.

The Division of Marital and Separate Property

The division of marital and separate property in a divorce depends on several factors. Generally, any asset acquired during the marriage is considered marital property, while those acquired before the marriage are considered separate property.

In community property states, marital assets are divided evenly, while equitable distribution states are divided based on what is deemed fair. In a divorce case, the burden of proof lies with the spouse claiming inherited or other property as separate property. They must provide evidence to support their claim. If it cannot be proven that the inheritance is separate property, it may be classified as marital property, making it eligible for division in a divorce.

Seeking Legal Counsel

Inheritance laws are complex, and legal advice is crucial to protect one's interests during a divorce. For complex divorce cases involving inherited assets, hiring an experienced divorce attorney is advised.

Legal professionals can provide personalized guidance and ensure an inheritance is protected according to the jurisdiction's laws. If there are concerns about inherited property in a divorce, it's essential to seek legal advice from an experienced family law attorney. They can provide guidance and help navigate the complex legal aspects of the situation. It's also critical to seek legal advice when drafting a prenuptial agreement to protect an inheritance according to state laws.


In conclusion, understanding the intricate relationship between inheritance and marital property is crucial for couples. While inheritance is initially considered separate property, actions such as blending or using it for marital expenses can transition it to marital property. Measures like maintaining separate bank accounts, comprehensive documentation, and legal agreements can help protect and preserve the separate status of inheritance. Professional legal advice is invaluable to ensure a fair and just division of assets, especially during divorce proceedings.

Frequently Asked Questions

When does an inheritance become marital property?

An inheritance can become marital property if mixed with joint assets or used for shared expenses or property. Therefore, it is essential to handle inheritance carefully to protect it from becoming marital property.

How can I prevent my inheritance from becoming marital property?

To prevent your inheritance from becoming marital property, deposit it into a separate bank account, maintain comprehensive documentation, and consider having a prenuptial agreement that designates it as separate property.

How does a prenuptial agreement protect my inheritance?

A prenuptial agreement can protect your inheritance by clearly stating its status as separate property, preventing it from being divided in the event of a divorce. This can provide assurance and protection for your inherited assets in the future.

What happens if I use my inheritance for joint expenses or marital property?

Using inheritance for joint expenses or marital property can result in the funds losing their separate property status and becoming marital property. This could impact the distribution of assets in the event of a divorce.

How do state laws impact the status of my inheritance?

State laws can impact the status of your inheritance by categorizing it as separate or marital property, depending on whether you live in a community property state or a common law state. Understanding these laws is crucial for determining the legal status of your inheritance.

Disclaimer: The information provided on this blog is intended for general informational purposes only and should not be construed as legal advice on any subject matter. This information is not intended to create, and receipt or viewing does not constitute an attorney-client relationship. Each individual's legal needs are unique, and these materials may not be applicable to your legal situation. Always seek the advice of a competent attorney with any questions you may have regarding a legal issue. Do not disregard professional legal advice or delay in seeking it because of something you have read on this blog.

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