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How to Ensure that Your Inheritance Remains Separate Property


In most cases, any property obtained by a couple after marriage is considered to be a marital asset. There are, however, exceptions to this rule. For instance, certain gifts and inheritances received by one spouse during a marriage often remain separate property and so remain in the sole possession of the original owner. The only exception to this rule is when the recipient of the inheritance commingled the funds with those that belonged to both parties. Proving that an inheritance is separate property can be difficult, so if you received an inheritance from a loved one during your marriage, but are now attempting to obtain a divorce, it is critical to speak with an experienced property division attorney who can ensure that your interests are protected.

Commingling Assets  

Although inheritances obtained during a marriage are technically considered the separate property of the recipient, it is not uncommon for courts to rule that the assets were commingled enough to satisfy the definition of marital property. Generally, it’s much easier to prove that an inheritance is separate property if there is evidence that the funds were kept separate from the couple’s other assets. For instance, investing the proceeds of an inheritance into a retirement portfolio that only the recipient of the inheritance had access to would most likely result in a ruling that the funds remained separate property. Alternatively, if the recipient used part of the funds to make a down payment on the couple’s marital home and put the rest into a joint checking account, a court would most likely decide that the inheritance had essentially been gifted to the other spouse and so now constituted marital property. In fact, even if a person deposits the inheritance in a separate account in just his or her name, the assets can still be considered commingled if the recipient later deposits marital funds or paychecks earned from employment into the same account.

When it comes to inheritances obtained during a marriage, courts presume that the assets are non-marital. This is true regardless of whether the inheritance was made via will or through the state’s laws of intestacy, so before a court will determine that separate property was commingled enough to become marital property, the other spouse must petition the court.

How to Keep Your Inheritance Separate  

There are a number of steps that a person can take to protect his or her inheritance from being divided in the event of a divorce, including:

  • Setting up a new separate account to receive the assets;
  • Refraining from putting any other assets into the account holding the inheritance, even temporarily; and
  • Refraining from commingling the inheritance with any marital assets.

To learn more about these and other strategies to protect your assets in a divorce, please call our legal team for advice.

Call Today to Speak with an Experienced Property Division Attorney

If you received an inheritance during your marriage and your spouse is attempting to retain a portion of it after divorce, please call dedicated property division lawyer Sandra Bonfiglio, P.A. at 954-945-7591 for a free consultation. Our Fort Lauderdale legal team is eager to assist you today.



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