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Will my Spouse be Entitled to my Inheritance?

When getting divorced, all marital property is to be equitably divided between the parties. Keep in mind equitable distribution does not necessarily equal. Martial property is defined as property acquired during the marriage regardless of who’s name the property is titled under. So the question becomes what if you receive an inheritance during the marriage, is your spouse going to share in this inheritance? Generally, the answer is no.

There are a few exceptions to what a court may consider as marital property, one such exception is an inheritance. Your inheritance will be safe from equitable distribution, normally. With every exception, there is usually an exception. If you received your inheritance and placed it into a joint account and you and your spouse started drawing down this inheritance, the court may find that you comingled the funds and converted this property—which was originally your separate property—into marital property. Of course if you only had one account and you had nowhere else to put the money, you can argue that the money was placed there as a matter of convenience and argue an exception to the presumption of comingling.

The safest course of action of course would be to place your inheritance into a separate account in which your spouse does not have access. That is text book. However, few people think about the legal status of an inheritance when they receive it—nor should they. If you didn’t put your money in a separate account and you are now contemplating divorce, transfer the money to a separate account now. The arguments will still be the same, however, separating the money in question makes it easier to deal with should a fight ensue.

Before fighting over this issue, speak to your spouse. See if they are really trying to make a claim to this money. A calm conversation may keep you from litigating this issue which will save time and money while allowing you to shift your attention to the issues of greater importance. Focus on your outcome, stay strong and keep taking ground.

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Garden City, NY 11530, Suite 337

Tel: 516-228-5050/ Fax: 516-228-8160

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