Is Inherited Property Subject to Division in a Divorce in Washington State?

By Heather Frances J.D.

During a Washington divorce, spouses can agree about how to divide their property and the judge can adopt that agreement in the divorce decree. If spouses cannot agree, the court can divide much of the property acquired during their marriage. Typically, inheritances are not subject to division except under certain circumstances.

During a Washington divorce, spouses can agree about how to divide their property and the judge can adopt that agreement in the divorce decree. If spouses cannot agree, the court can divide much of the property acquired during their marriage. Typically, inheritances are not subject to division except under certain circumstances.

Community Property

Washington is one of the few community property states, which means Washington considers property acquired during a couple’s marriage to be community property owned jointly by the spouses. Community property includes each spouse’s paycheck, personal property purchased during the marriage and real estate purchased during the marriage; Washington courts can divide community property during a couple’s divorce. However, certain property is considered separate property, and as such, is not divisible by the court, though there is a presumption that assets acquired during a marriage are community property.

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Separate Property

Certain items acquired during marriage -- and all property acquired before marriage -- are considered the separate property of the spouse who acquired them. Separate property includes assets acquired by gift and inheritance and profits and income from that separate property. For example, if a spouse inherits a house and rents it out instead of living in it, both the house and the rent money are considered separate property of the spouse who inherited it.

Commingling

Separate property can lose its special character and become community property if it becomes commingled, or mixed, with community property. For example, if a spouse receives a monetary inheritance and deposits those funds into a joint account where the money is used to pay community bills, the court may determine the inheritance money lost its special character. When an inheritance is no longer separate property, it becomes divisible in the divorce.

Tracing

Since the court presumes property is community property, a spouse who claims something is separate property has the burden to trace the property back to its origin and prove that it is still separate property. A spouse who asserts that inheritance proceeds were never community property has the burden to prove by “clear and convincing” evidence that the inheritance is separate property, and this burden of proof is more stringent than that of many states. If an inheritance is still in substantially the same form as it was when the spouse inherited it, tracing may be less difficult than it is when the property was sold to buy other property or mixed with community property.

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What Is California Community Property in a Divorce?

References

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Proving Money Is Inherited

Each state has its own laws regarding the division of marital property in a divorce. Community property states, which stand in the minority, require courts to divide an estate equally, whereas equitable distribution states -- the majority -- seek to divide estates equitably, or fairly. In both types of jurisdictions, inherited money is usually considered separate property and not divisible in divorce. The burden of proving that certain funds represent your inheritance, however, will likely rest on you.

Divorce & Community Property

In community property states, property and debt acquired while married is divided equally in a divorce. However, in a non-community property state, property is divided by equitable distribution, meaning a judge will divide property in a manner that is equitable or fair and not necessarily equally. Couples divorcing in a non-community property state follow that jurisdiction's rules for division of debts and assets, regardless of whether the couple lived in a community property state at the time the debts and assets were acquired. However, in all states, if the parties agree on a realistic division of property, the court will generally accept their agreement.

Who Gets Inherited Household Items in a Divorce in Pennsylvania?

When you divorce in Pennsylvania, the court will issue a divorce decree dividing property between you and your spouse. While some of your property is not subject to division by the divorce court, most is. The divisibility of property depends on when you acquired it and how. Inherited items typically are not divisible in your divorce.

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