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Safeguarding an inheritance during divorce

On Behalf of | Dec 26, 2021 | Divorce |

Couples facing the end of their marriages likely will need to make some serious decisions. One of the most challenging issues for Virginia couples — especially those in high asset divorce cases — is separating marital assets. Virginia is an equitable distribution state, and as such, division of assets and debts may not be equal. A family court judge will work to ensure a fair portion of joint assets for each person based on factors like age, income and the ability to earn. 

What about an inheritance? 

If one partner received an inheritance before or during the marriage, he or she has every reason to wonder if it, too, is susceptible to being divided. By the same token, the other spouse likely wants to know whether he or she is eligible to receive part of that inheritance. The short answer is that it depends. 

Commingling of property 

Assets brought into the marriage are personal unless they commingle with joint property, which includes gifts and inheritances. No part of an inheritance will go to a spouse as long as the funds are kept from any joint ventures, including: 

  • Depositing part or all inheritance money into a joint account or an account to which a spouse has access or ownership 
  • Withdrawing money from an inherited trust and depositing it into a joint account  
  • Using inheritance money for joint expenses, such as vacations, family purchases or household expenses 
  • Using inherited property as the family home or adding rent collected from inherited property into a joint bank account 
  • Making home improvements on jointly owned property, using inheritance money 
  • Allowing a spouse to participate in the upkeep, repairs or maintenance of inherited property 

Even when commingling is accidental, it could damage the chances of keeping an inheritance separate, but you can reverse that if you have kept proper documents. It is especially important in a high asset divorce to demonstrate the intent to keep inheritance funds separate, and this is where a marital contract can come in handy. In Virginia, however, even a prenuptial or postnuptial agreement can become invalid when a spouse isn’t diligent about keeping inherited assets separate from marital ones.