Is an Inheritance Received During Marriage Subject to Division?

By Larissa Bodniowycz, J.D.

Is an Inheritance Received During Marriage Subject to Division?

By Larissa Bodniowycz, J.D.

Whether an inheritance you received during marriage will be subject to division depends on several factors, including the state in which you live, your treatment of the inherited property, and whether an inheritance was left to one or both spouses.

Man and woman looking at a laptop together

Characterization of Property

Generally, any money a spouse earns or property a spouse acquires while married belongs to both spouses. This type of jointly owned property is called "community property" or "marital property" depending on the state. In the event of divorce or the death of a spouse, a court will divide community property and grant a portion of the property to each spouse.

However, anything a spouse receives as an individual inheritance or gift can, under certain circumstances, be considered separate property. Separate property is not subject to division upon death or divorce and remains the separate property of the spouse who owns it. A spouse's individual inheritance may remain separate property regardless of whether the spouse receives that property prior to or during the marriage.

Avoid Commingling

An inheritance will become subject to division based on how you and your spouse treat that property. You must treat any non-marital assets separately from marital assets. If you commingle your inheritance with marital assets, the inheritance will likely become subject to division because you haven't treated the inheritance as your own separate property. Commingling will occur, for example, if you deposit inheritance funds into a joint marital account or if you use inheritance funds to purchase joint marital property.

Prenuptial and Postnuptial Agreements

Marital property is property you and your spouse earn or acquire during the marriage, unless both spouses agree otherwise. If you want to ensure your inherited property remains separate, you can always enter into a written agreement with your spouse to confirm that your property remains your separate property. A prenuptial agreement will protect an inheritance before the marriage. A postnuptial agreement will protect an inheritance you received during the marriage.

Different Scenarios

The following are just a few examples of different scenarios under which an inheritance is received during marriage.

Example 1: Wife receives a $100,000 inheritance from her mother. Wife deposits the funds into a joint account she maintains with Husband. Both Wife and Husband use the account to deposit wages and pay for household expenses. The inheritance will likely be subject to division and considered community property because the wife commingled the inheritance with joint funds.

Example 2: Wife receives a $100,000 inheritance from her mother. Wife deposits the funds into a bank account under her name alone. Husband does not access or draw funds from the account. Neither Husband nor Wife uses the funds for household expenses. The inheritance probably will not be subject to division and will likely be considered Wife's separate property.

Example 3: Wife receives a $100,000 inheritance from her mother. Wife uses the money to buy a house that she and Husband jointly own. Wife and Husband both use the house as a second home. Wife makes repairs and improvements on the house using marital funds. The house will likely be considered community property and subject to division because the inheritance became marital property.

Example 4: Wife inherits a house from her mother. Wife rents out the house and earns rental income. The house is never used for Husband's benefit and the house is never in Husband's name. The house will likely belong solely to Wife and will not be subject to division. The rental income, however, will most likely be considered community property as income earned during the marriage.

Example 5: Wife's mother leaves a house to both Wife and Husband. The house will likely be considered community property and subject to division because it was left to both spouses.

Marital property laws will vary greatly by state. Consult with an attorney in your jurisdiction regarding specific laws that will apply to you. You can help avoid some of the uncertainty through estate planning.

This portion of the site is for informational purposes only. The content is not legal advice. The statements and opinions are the expression of author, not LegalZoom, and have not been evaluated by LegalZoom for accuracy, completeness, or changes in the law.