Divorce Tips: How Do I Protect My Inheritance from My Spouse?

While no one goes into a marriage planning to get a divorce, everyone who gets married should understand that divorce is a possibility and plan accordingly. That means protect yourself and your interests in the event that your marriage doesn’t end how you’d prefer. It’s not something that’s pleasant to think about, but just like when you buy life insurance, it’s a necessity. You don’t want to find yourself in a position where you must start over after a divorce, and you’re stuck in any of the following situations:

The issues listed above are only a sample of the worst-case scenarios you could face during and after a divorce. Hopefully, it never comes to that for you and your spouse. Still, even if you think that you’d never have to worry about any of the above-mentioned circumstances happening if you got divorced, there may be something you haven’t thought about that could come back to bite you. For instance, what happens if your spouse tries to come after your inheritance during your divorce?

Can My Spouse Come After My Inheritance If We Get Divorced?

Depending on the laws in your state and when and how you acquired the inheritance, it is possible that your spouse could make a claim on it during your divorce. In New York, inheritance is generally treated as separate property, making it off limits for your spouse if you get divorced. However, in some cases, inheritance can lose its protection as separate property and become eligible for equitable distribution as a marital asset:

  • Commingling – This involves combining (or commingling) inheritance with marital property, which strips the inheritance of its status as a separate property. Instead, it is considered marital property and is eligible to be included in equitable distribution during a divorce just like any other marital asset. An example of commingling would be depositing inheritance money into a joint checking or savings account you share with your spouse.
  • Transmutation – This is like commingling, but generally takes place over a longer period. For example, let’s say you inherit a house, and you use money from a joint checking or savings account you share with your spouse to renovate the property or pay the property taxes. In such a case, over time, doing things like that could be enough to turn that house from separate property into a marital asset.
  • Nonmonetary Contributions – Nonmonetary contributions involve things your spouse may do that can turn inheritance from separate property into marital property. For instance, if someone inherits a car that needs a lot of repairs, and their spouse performs those repairs, then the repair work that they performed on the vehicle could be enough to turn the car from separate property into a marital asset.

How Can I Protect My Inheritance from My Spouse During Divorce?

When people think about protecting their assets in case they get divorced, the first thing that often comes to mind is a prenuptial agreement. However, sheltering your assets from your spouse in the event of a divorce doesn’t necessarily mean you must sign a prenup or postnuptial agreement (although, doing either one is usually not a bad idea). It just means you need to think about what you’d want a fresh start to look like if your marriage ends in divorce and make a plan to ensure that you can turn that idea into a reality if the need ever arises.

In the case of inheritance, there are a few things you can do to protect it from your spouse in case of divorce, including:

  • Separation – If you receive an inheritance during your marriage, keep it separate from your marital assets. If it’s cash, don’t put it in a joint checking or savings account you share with your spouse. If your inheritance is property, don’t use marital assets to pay for anything related to that property. In addition, don’t allow your spouse to do any work on your inherited property, such as performing repairs or renovations.
  • Trust – Speak to anyone who is planning to leave you an inheritance and ask them to consider keeping your inheritance in a trust. If they agree, make sure that you are the beneficiary of the trust, but that the trustee will control distribution of the assets in the trust. If you have control of the distribution of your trust assets, the court may determine that those are your assets even if you don’t remove them from the trust. If the court determines that they are your assets, there’s a chance that they could be considered marital assets, which would allow your spouse to go after them in a divorce.
  • Prenuptial and Postnuptial Agreements – A prenuptial agreement is negotiated and signed prior to marriage. A postnuptial agreement is negotiated and signed after a couple is married. Both agreements cover how to deal with issues that the couple could face during marriage or if they get divorced. One of the topics usually included in prenups and postnuptial agreements is division of assets (such as inheritance) in case of a divorce or legal separation.

Set Up a Free Consultation with an Experienced Family Law Attorney Today

Benjamin Franklin once said, “By failing to prepare you are preparing to fail.” That piece of advice doesn’t just apply to preparing for things we’re looking forward to, but also getting ready for things we hope never happen. That includes divorce.

At Levi Divorce & Family Law Attorneys, we realize how hard it is to plan for the end of your marriage before it has even begun or while you’re happily married. Unfortunately, that’s part of life. Our experienced family law attorneys know what life after marriage should look like and we know how bad things can get if you’re not prepared in case your marriage fails.

Hopefully, you and your spouse never have to endure your marriage ending because of divorce, but if it ever does, you don’t want to have to face financial catastrophe on top of the end of your marriage. Let us help you make sure that never happens. To learn more about our firm and how we’ve helped our clients, check out our reviews.

If you need help protecting your inheritance from your spouse, reach out to us online or call us at (718) 215-0121 to schedule a free confidential, no-obligation consultation. We are available to take your call 24/7.