Can a Future Inheritance Be Put Into a Divorce Agreement?

By Teo Spengler

It takes two to marry but only one to divorce. If your spouse wants out, you save time and tears by accepting the decision and attempting to resolve financial issues amicably. Although a future inheritance probably doesn't constitute marital property in your state, you and your spouse are free to mention it in an equitable divorce agreement.

Marital Property

Some states, like California, divide property among spouses under community property laws, which attribute everything earned by either spouse during a marriage to the two spouses equally. An inheritance or gift is the separate property of the spouse receiving it. In other states, marital property includes all property owned by each spouse at the end of a marriage. In either case, an inheritance one spouse expects to receive in the future is generally not considered when dividing the couple's marital property.

Equitable Division

However, when a couple prepares a marital settlement agreement, no law prevents them from mentioning a future inheritance. For example, if the custodial spouse is not seeking child support because she expects to inherit a fortune in the near future, this reasoning belongs in the agreement. Alternatively, if one spouse agrees to accept less than his fair share of marital holdings because of a future inheritance, it is appropriate to mention that fact in the agreement. Knowledge of the future inheritance may convince a court that a one-sided settlement is, in the long run, equitable.

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Inheritance Under California's Divorce Law

California has the distinction of being one of America's few community property states. Under California law, if you’re married, both you and your spouse jointly own everything that either of you acquires or earns during the marriage. However, even community property states make a distinction between marital property and assets that should logically and morally belong to one spouse alone. In California, inheritances fall into this category.

Ohio's Prenuptial Agreement Laws

To prevent the distribution of your assets to a potential spouse if you later divorce, consider drafting a prenuptial agreement. A prenuptial agreement is an agreement between you and your potential spouse that describes how you would like your property distributed upon divorce. However, to be recognized as valid in Ohio, the agreement must fulfill certain requirements including being signed in the presence of two witnesses.

Things Included in a Post-Nuptial Agreement

States have default rules for how property acquired by a couple during marriage is dealt with upon divorce. However, you and your spouse are generally free to agree to a different outcome by executing a post-nuptial agreement. These contracts are entered into during marriage and can also cover matters related to spousal support and the allocation of marital debts.

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