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Family Law Blog

Can Your Spouse Get Your Inheritance in a Divorce?

By Alexander Magid, Esq. on 9/18/13 9:05 AM

Divorce lawyers in Blue Bell PAOne question our divorce lawyers in Blue Bell, PA often get asked is "can my spouse get my inheritance as part of a divorce?"  Receiving an inheritance provides unique circumstances to a divorce and while these assets may seem like your personal property without question, there are a number of situations where these assets may be considered "marital property."  If considered "marital property," your inheritance may be subject to division as part of the divorce process, thus entitling your spouse to a significant portion of an inheritance left directly to you.

How is Marital Property Divided in PA?

Before looking at the specifics of how an inheritance may be affected by a divorce, it is important to have a basic understanding of how property is generally divided in PA.

Parties to a divorce in PA have certain rights when it comes to their property, as PA law requires a court to "equitably divide" marital property between spouses.  This "equitable" division is not to be confused with "equal" division, as the court looks to a number of factors to divide marital property as justly as possible.  The only property that is subject to division as part of a divorce is "marital property," that is, all property acquired by either party during the marriage and any increases in value of non-marital property.

How is Inheritance Affected by Divorce in PA?

Generally speaking, if an inheritance is left to you (and you alone), it is not considered to be marital property subject to division, whether you received it prior to or during your marriage.  However, if this inheritance is at any time co-mingled with jointly-used funds or used for the common benefit of both spouses, it may be subject to equitable distribution and may present additional problems, complications, and concerns:

  • Even if an inheritance is kept completely separate from marital funds, if it appreciates in value during the length of your marriage, the appreciated value may be subject to equitable distribution.
  • If your spouse contributes to paying any inheritance tax on such assets or you pay the tax with marital property funds, the inheritance may be viewed as marital property and be subject to equitable distribution.

While it may seem relatively simple to keep inheritance money in a separate account and not use it for the common benefit of the marriage, there is more to it than that.  Aside from having the awkward conversation with your spouse as to why you are keeping it separate and not using it to benefit the marriage, what if the inheritance is not cash, but real property? How can this be held separately?  These are the types of questions and issues that experienced divorce lawyers in Blue Bell, PA can advise you on.

Divorce Lawyers in Blue Bell, PA Can Recommend Strategies to Protect Your Inheritance

It is not uncommon for an inheritance to consist of both cash and real property, i.e. a house, farm, or condominium.  Our skilled divorce lawyers in Blue Bell, PA recommend a few things to keep in mind when receiving an inheritance of real property in terms of being able to protect it from being sold and distributed as part of a divorce:

  • The initial concern will be how real property is left to you and how the deed is exactly written.  In order to be considered separate from marital property, the real property must not include your spouse's name.  While not a common occurrence, it is possible that when property to left to you, the deed also includes your spouse's name.  It is vital to check the deed when the property is first inherited to ensure it is properly in your name only, or with individuals other than your spouse.
  • Much like a cash inheritance, if your spouse contributes to the upkeep and increase in value of the real property or you do the same using joint funds, such real property may be considered marital property subject to equitable distribution. 
  • Each year property taxes must be paid on property left to you, as well as any homeowner association fees, homeowners insurance, etc.  If your spouse contributes to paying these fees or taxes or you pay for them with marital funds, the property may be considered marital property during a divorce.

Conclusion

As evidenced above, if there is any indication that your relationship may be headed in the direction of a divorce, be sure to have any inheritance received during your marriage completely separate from your mutual marital funds and follow the general advice given above.  No matter when you received an inheritance, it is only a matter of time before you are faced with having the awkward conversation of why you are keeping it separate from your spouse and not using the money or property for the benefit of the marriage.  However, if divorce seems to be in your future, it is in your best interest to contact the experienced divorce lawyers in Blue Bell, PA at The Martin Law Firm.  The attorneys can advise you further on your rights regarding marital and non-marital property and how to further protect yourself during a divorce. For more information on the PA divorce process, follow our Family Law Blog or check out our free PA Divorce Roadmap Infographic.