If you are getting a divorce in Florida, the property you and your spouse own together -- the so-called marital assets -- will have to be split. Whether or not an inheritance is considered part of the marital assets depends on a few different factors, including whether the inheritance was left to one or both spouses and whether the inheriting spouse kept the inheritance separate or commingled it with other marital assets.
Florida is an equitable distribution state, which means that Florida courts divide marital property during divorce in a manner that is fair and equitable, though not necessarily equal. The court will begin with the assumption that the distribution should be equal but -- unlike community property states -- may adjust that distribution if adjustment is appropriate for a particular case. The court will consider many factors, including each spouse’s contributions to the marriage, the economic circumstances of each spouse, the duration of the marriage, and contributions of one spouse to the other spouse’s career or education.
A Florida court can divide only marital assets and liabilities. Generally, these are acquired during the marriage by one or both spouses. For example, cars, loans, bank accounts, real estate, mortgages and personal property could all be marital assets. Even if the item was acquired only in one spouse’s name, it is still likely to be considered a marital asset. For example, if you bought your car during the marriage but it’s only listed in your name, it is still considered a marital asset. Likewise, the car loan is considered a marital liability.
Florida courts do not divide non-marital assets or liabilities in a divorce. Non-marital assets and liabilities include things acquired by either spouse before the marriage, gifts or inheritances received during the marriage, and things you and your spouse have agreed in writing to consider as non-marital assets. This also includes any income received from non-marital assets and any assets exchanged for non-marital assets. For example, if you inherit a house during your marriage and then rent out that house, both the house and the rent money you receive are considered non-marital assets.
If you do not treat your non-marital assets separately from your marital assets, you risk accidentally converting the non-marital assets into marital assets. Typically, this happens when you commingle -- or mix -- marital and non-marital assets together during the marriage, thereby causing the non-marital assets to lose their special status. For example, if you use your inheritance to pay marital debts or purchase marital property, a divorce court will likely decide your inheritance has become marital property; therefore, it could be awarded as part of the property division in your divorce. The spouse asserting that a commingled asset is a non-marital asset has the burden of proof, which means it's up to that spouse to prove to the court that the commingled asset should not be considered a marital asset.