Division of money and property can be one of the most contentious issues during a divorce. It can also be one of the most confusing — and if one or both spouses received an inheritance during the marriage, that can add another layer of complexity.
The short answer is generally "no." This is because inheritance money received by one spouse is usually not split in a divorce. However, there are nuances and circumstances that can affect that answer in some situations, so it's always in your interest to talk to an experienced divorce attorney about what will happen to your inheritance.
In Illinois, inheritances are generally considered separate property.
To properly divide money and property during a divorce, the court has to determine whether it is marital property or separate property. As a general rule, any property acquired by either spouse during the marriage (that is, from the day you married to the day your divorce is finalized) is considered marital property and is thus subject to property division.
However, inheritances received by one spouse during the marriage are an exception to the rule. In Illinois, the law considers money and property received via inheritance to be separate, non-marital property, meaning it is not subject to division in the divorce.
There's a caveat to the exception, though: to remain separate property, the inheritance must be maintained separately from the marital property. There are two ways an inheritance could become marital property:
- Transmutation: the inherited property is altered in such a way as to become marital property. For example, if you inherited a house and then placed both your and your spouse's name on the title to the house, then the house will likely be considered marital property.
- Commingling: the property is mixed (commingled) with marital property in such a way that it can no longer retain its separate character. For example, if you inherited money and then placed it in a joint bank account with your spouse's money, it will likely be considered marital property.
In some circumstances, this can be a close call. For instance, what if you maintained separate financial ownership of the property, but your spouse helped with the care and maintenance of the property? It depends — which is why you need a divorce lawyer to evaluate the situation and determine how it would likely play out in family court.
How this plays out in divorce court depends on the circumstances.
Keep in mind that the divorce courts start with the presumption that all property is marital property. Therefore, if you want to show that a particular piece of property is separate, you need to prove it. For an inheritance, that may involve producing a copy of the will that showed you inherited the property, as well as evidence showing that it was maintained separately and not converted into marital property. Conversely, if you want to show that a particular piece of property is not separate, you have the opportunity to provide evidence that it was commingled or transmuted.
In addition, the divorce courts can take inheritance money into account in other ways as part of the overall division of property. Illinois is an "equitable distribution" state, which means the court tries to reach a division of property that is fair but not necessarily equal. One of the criteria the court considers is each spouse's financial resources. If one spouse has a significant amount of inherited property, that may affect the way the court looks at each spouse's relative financial situation, even if the inherited property itself is not subject to division.
An experienced divorce lawyer can help you navigate inheritances and property division.
Again, dividing your assets during divorce can be a difficult and contentious process. It also has huge implications for your financial future and your post-divorce quality of life. These aren't decisions you want to make on your own. An experienced divorce attorney can help you understand your rights and advocate for your interests throughout the process.
If you are moving toward divorce or dealing with a contentious division of property, the experienced attorneys at Courtney Clark Law, P.C. can help. Schedule your free case consultation with a member of our legal team today.