What Happens to My Inheritance During a Divorce?
Going through a divorce is often a difficult and stressful time, and not knowing for sure what your rights are when it comes to inheritance can only make it worse. Generally, in an Illinois court, an inheritance is considered separate property, meaning it belongs solely to the spouse who received it and is not subject to division in a divorce.
Within divorce proceedings, the law typically distinguishes property as either ‘marital’ or ‘separate.’ Marital property is subject to division between spouses, while separate property isn’t. In Illinois divorce proceedings, a court will equitably separate each spouse’s assets. However, equitable does not mean equal, meaning that assets may be split equally while others may be given to their original owner. Learn more about how inheritance works when going through a divorce.
Do I Have to Share My Inheritance in a Divorce?
There are a few scenarios in which inheritance may become categorized as marital property rather than separate and thus subject to division. Inheritance becomes marital property when commingled, meaning the inheritance money has been placed into a shared fund both spouses use. Likewise, if one party used the inheritance money to pay for a marital asset, that asset may become partially or entirely marital property. In that case, the money invested into the marital asset loses its separate property distinction and is vulnerable to division. A common example we see of this is when a spouse uses inheritance to buy a home with their spouse in joint names, or he/she uses the inheritance to make improvements to an existing marital home.
Can I Claim My Ex’s Inheritance?
Many factors play into the complicated legal process of claiming an ex-spouse’s inheritance. If one party receives an inheritance after a marriage ends and the divorce is finalized, the ex-spouse cannot go after it – with one exception. Illinois courts may view inheritance as a potential basis for a modification request. If one spouse is receiving spousal or child support, they might be able to petition the court for an increase in the support amount, citing the other party’s newly acquired inheritance as the reason.
The legality of claiming an ex-spouse’s inheritance becomes more complex when considering hidden assets. If inheritance is hidden during a divorce, the other spouse can try to claim it. A concealed asset is any property, income, or financial resource that one of the spouses was unaware of due to concealment.
In most cases, if the inheritance was kept in one spouse’s name only, it belongs to that party and cannot be divided in divorce proceedings. The best way to ensure that your ex-spouse cannot attempt to claim your inheritance is to avoid transferring either the funds or property into their name or into joint names, as the inheritance then becomes marital property rather than separate.
Protecting Your Inheritance During Divorce
There are a few different ways to safeguard your inherited assets before and during your marriage. Regardless of whether your inheritance is in the form of investments, funds, or property, if you keep the asset in your name only and keep it from becoming commingled with the assets that you and your spouse share, your inheritance will not be able to be divided during your divorce. Another option to further protect your inheritance is to consider a prenuptial or postnuptial agreement with your spouse.
A prenuptial agreement signed by you and your spouse before marriage allows you to determine what income, property, and debts will remain separate property after a potential divorce. If you already were in possession of an inheritance that you wish to stay in your name after a divorce, you can specify that desire in your prenuptial agreement. Although no one wants to imagine divorce before getting married, prenuptial agreements make divorce easier since you and your spouse agreed upon division before the marriage begins.
However, if you find yourself already married and missed the prenuptial opportunity, you and your spouse can still enter a postnuptial agreement to specify your desire for separate assets. This agreement is another way to ensure that any inheritance or assets you desire to keep separate will be honored. A postnuptial is similar in content and form to a prenuptial – the main difference is it gets signed by both parties after the marriage begins.
Navigating Inheritance and Divorce with an Attorney
During your divorce process, when so much can feel uncertain, you deserve to have yourself and your assets taken care of. You’ve worked hard for your success, and you need an attorney who can fully protect you while helping you advance toward your goals. If you’re worried about protecting your inheritance during your divorce, Kristen Strieker is your go-to for trusted legal advice and professionalism. As an attorney who practices exclusively in family law, particularly divorce and property divisions, Kristen can help you successfully proceed with your divorce while keeping you and your interests in mind every step of the way. Contact Strieker Law Firm today with any questions or to schedule a consultation.