When a person receives an inheritance, it is usually considered his or her property. However, in the State of Florida, if said person is married, some circumstances can change the ownership of any inheritance from personal property to marital property.
Most couples don’t spend time in their marriage contemplating ways to “safeguard” their inheritance from their spouse. In the event of a divorce, however, that can change very quickly as the focus turns to “mine” rather than “ours.” By that time, it may be too late to keep any inheritance from being considered marital property, to be shared by both parties.
Florida is an equitable distribution state, which means that the court aims to divide assets fairly instead of evenly. The question is, what is fair? In Florida, if the couple is unable to agree, the court will decide.
What is Marital Property
Marital property consists of assets accumulated and earned during the marriage. If you purchase a house or a car with joint funds, those assets are marital property. Even retirement funds accrued during the marriage by one of the parties are marital property.
What is Personal Property
Certain assets acquired by one spouse during the marriage are usually categorized as personal property:
- Any award for personal injury, as well as payments for lost earnings.
- Any property acquired by one party using non-marital assets.
- Any property that is part of a pre or post-nuptial agreement requires that both parties agree is the personal property of one of the spouses.
- An inheritance that one party receives before or during the marriage that is intended solely for him or her as an individual.
- Any property acquired by inherited funds that is in one spouse’s name. The exception is if those inherited funds were commingled with marital funds.
- Any gifts received by one spouse before or during the marriage that were never intended or used for the benefit of the other spouse.
- Any asset that belonged to one spouse before the marriage, has remained in that spouse’s sole name and has not been used to benefit the other spouse during the marriage.
How Can an Inheritance Become Marital Property
The difference between personal and marital property may seem straightforward, but a divorce can complicate the distinction. For example, if one party inherited a house and both parties stayed in the house and contributed to its upkeep and improvement with marital assets, this house, which was inherited by only one spouse, may well be considered marital property in the event of a divorce. The reason is that both personal and marital assets were commingled with regard to this house, and the inheriting spouse may have to share a quarter of its value in a divorce.
How to Protect Your Inheritance
The safest way to protect an inheritance, whether received before or during the marriage, is to ensure that personal funds and marital funds are kept strictly separate and are not commingled. The other spouse’s name should not appear on any account or property that is part of the inheritance. Marital assets should not be used to improve any inherited personal property. A family law attorney may be able to offer advice on the best means to protect your personal property during a divorce.
Creating an irrevocable trust and placing personal and only the personal property into said trust is another way to protect an inheritance. However, if marital assets, such as a house, are placed into the trust as well, the court may consider this commingling of property and the trust assets may be considered marital assets. An attorney will be able to set up an irrevocable trust that can best protect personal property in the event of a divorce.
Can An Inheritance Affect Alimony
The court may not award the non-inheriting spouse with any inherited property; however, it may consider such property when determining the inheritor’s ability to pay alimony. It would be difficult for him or her to plead poverty when the inheritance indicates differently. The court may well decide that the said inheritor is the wealthier spouse and award alimony accordingly. For example, if the non-inheriting spouse is unemployed, the inheriting spouse may be ordered to pay more alimony until the other spouse finds a job.
During the marriage, the aforementioned inherited house will likely increase in value because both spouses used marital funds to maintain and improve it. The difference between the original value and the value of the improved property during the divorce is considered a marital asset as the improvement involved marital funds and the court may split such assets.
If the Inheritance is a Business
One spouse may inherit a family business while the couple is married. As this business increases in value, it can be difficult to distinguish between personal and marital property. A court might determine that the increased value of the business is marital property, while the original value at the time of the inheritance remains personal property. However, these numbers can become complex, and both spouses can benefit from a family law attorney and an experienced accountant.
Gifts the Couple Gives Each Other During the Marriage
Couples are known to give presents to each other. They may be surprised to learn that in the event of a divorce, such a present is considered marital property. If one spouse purchases expensive jewelry for the other spouse’s birthday using inherited funds, the jewels are deemed to be marital property. This may defeat the purpose of a gift, but that is how the court in the State of Florida will view the situation.
Conclusion:
Most divorcing individuals will prefer holding on to their inherited property. The best way to ensure that is to have an attorney prepare a prenuptial or post-nuptial agreement. The post-nuptial agreement will protect an inheritance received during the marriage. Both agreements should clearly state what property is personal in the event of a separation.
In all cases, the inherited property must be kept separate from any marital property. It should not be placed in the spouse’s name, nor should it be used for the spouse’s benefit. If one party has inherited a car, even if the car remains in his or her name, if the spouse uses the car, it turns from personal to marital property.
Individuals should be informed about inheritances and what can happen during a divorce.
The legal process can get difficult, which is why we always recommend that you seek the assistance of counsel; or at least have a consultation. Schedule a consultation with one of our attorneys today to review the issues of your case, the legal options you may have, and certain rights that pertain to your unique situation.
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