Fabio & Merrill

Is an inheritance shared property? Here's how to know

Your spouse obtained a large inheritance while you were married, and you've both enjoyed living well while having that money in the bank. He always had it in his own bank account, which wasn't a problem for you. If you wanted any money at all, he'd simply transfer it over to your bank account.

You had both agreed to keep your bank accounts separate, but now that you're getting a divorce, that could make things tricky. Inheritances are treated a little differently than other kinds of assets.

Can you access the inheritance as part of your separation agreement?

It depends. Usually, inheritances are not subject to equitable distribution rules, because they aren't considered to be marital property. Inheritances are treated as separate property.

There is a chance, however, that your spouse's inheritance has lost its immunity. This may have happened when he began sharing it with you. For example, if you can show that you were always given a certain amount of the inheritance each month, you may have a good point to argue that you should continue to receive that money.

If you and your spouse had shared a bank account, then the inheritance would have lost its immunity as well. Unfortunately, since you did not, that won't play a role in determining if the inheritance is shared or separate property.

What should you do if you want to seek a portion of your spouse's inheritance?

If the inheritance has been commingled in any way, then there's a chance you can argue that at least a portion of it belongs to you. You'll want to define how the inheritance has been used to purchase marital property shared among you or prove that your spouse intended for the money to be used for both of your benefit. Any text messages, written documents or accounting information could help prove your point in court.

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