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Attorneys Vic Hill and Brad MacDonald

What happens to your inheritance when you divorce?

Your property and debt will be a big focus of your Georgia divorce proceedings. The bigger your assets, the more likely you and your ex are to disagree about them. If you have received an inheritance during your marriage, you will likely have concerns about what will happen with it during your divorce.

Is an inheritance your separate property if it comes to your family, or does it belong to you and your spouse as marital property, meaning that you will have to share it? In order to answer that question, you will first have to answer a few other questions.

Who did the testator name in their estate plan?

One of the most important considerations when trying to determine who owns an inheritance is to whom the deceased individual left the property. Did they name just their biological family member, or did they mention both spouses in their last will? If a loved one left property to your spouse specifically, they will likely be able to retain that property even after your divorce.

If only one spouse received the inheritance, who could access it?

The name in the last will is important. If only one spouse is technically a beneficiary of the estate, then their inheritance typically remains their separate property. However, maintaining an inheritance as separate property requires that only one person has access to or ownership of the inherited assets.

For example, if one spouse inherits a piece of real estate, their spouse will have a claim if both spouses put their names on the deed to the property. The same is true if you add your spouse to the house, give them a debit card that attaches to an account or even deposit the funds into a joint account. Those behaviors constitute commingling and can give a spouse a claim to it in a divorce.

Do you have a marital agreement?

A prenuptial or postnuptial agreement dictates how you will split your lives when you divorce. It could talk about the division of your property or even set aside certain assets as separate property. You may have created an agreement specifically to protect your inheritance. If you did, you may not have to worry much about claims by your ex regarding your inheritance.

You will probably need to discuss your specific needs and concerns with a lawyer to establish what steps you need to take next if you hope to protect any inherited assets as part of a pending divorce.