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Will My Inheritance Be Split 50/50 When I Get Divorced?

On Behalf of | Jan 28, 2020 | Divorce, Property Division

Can one spouse claim rights to another spouse’s inheritance during a divorce? In some cases, the inheritance was received during the marriage. In others, the inheritance may have entered the marriage with one spouse and later got mixed in with the couple’s other marital assets. Consider these common legal scenarios that can arise when inheritance is an issue during an Orange County California divorce.

Generally speaking, inheritances are not subject to equitable distribution. By law, an inheritance is not considered marital property. Inheritances are treated as separate property or property belonging only to the spouse who received the inheritance. Since it is regarded as separate property, an inheritance may not be divided between divorcing parties.

There are a few different scenarios that can lead to inheritance funds losing their status as “separate property:”

  • If it is shared between the two spouses
  • If the inheritance funds are comingled by depositing into a joint account or
  • If the inheritance is used to cover joint marital expenses
  • If an inheritance is used to make improvements to the primary residence

The key is the comingling of inheritance funds. If separate property, such as an inheritance, is used in a way that provides a benefit to the couple jointly or to the joint marital assets, it is no longer considered separate property by the court. In this instance, the inheritance may be subject to division during divorce.

Sometimes a spouse enters the marriage with prior wealth (from an inheritance or another source). It is essential not to comingle these funds for the same reasons listed above. If you are worried about how your separate property assets will be handled in your marriage or in the event of a divorce, consult an experienced attorney about a prenuptial or postnuptial agreement. 

If you have questions regarding the division of property and California divorce law, please get in touch with one of the experienced Orange County California divorce attorneys at The Maggio Law Firm as soon as possible.