Is an Inheritance Marital Property?

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Most Common Family Law Issues:

What Is an Inheritance?

An inheritance is a gift passed on to an individual when the original owner passes away. An inheritance can be a sum of money or it can be a tangible item such as a car or house.

Often times, individuals will draft wills that dictate how each asset is to be divvied up when they die. If an individual has not drafted a will, the state’s inheritance laws will govern. Usually, state law says that spouses, then immediate family will receive the assets and property of the deceased.

What Is Marital Property?

Marital property is property that is jointly owned by a married couple. When the parties enter into a marriage, the majority of their assets and property then become the property of the couple. Each spouse has a 50% interest in the property.

This is known as marital or community property. Common types of community property include:

Generally speaking, upon divorce, the parties are to divide up the assets and property based on their 50% interest. However, some items cannot be cut in half, such as pets or cars. Therefore, spouses often enter into marital property agreements. These agreements attempt to evenly divide property between the spouses. For instance, in the event of a divorce, the wife may get the Camry while the husband may get the Accord.

Is an Inheritance Considered Marital Property?

An inheritance is usually not marital property. Not every asset or piece of property owned by a spouse becomes the joint property of the other spouse.

Separate property belongs to just one spouse. An inheritance is one such example of separate property. It does not matter if the inheritance was received before or during the marriage. Thus the other spouse does not have any right to this inheritance during life or after death.

However, an inheritance could be marital property if the couple inherited the property together. In addition, the spouses could decide to state in a marital property agreement that a sum of money or property inherited by one spouse is the joint property of the couple.

Do I Need a Lawyer for Divide Up Marital Property?

Family law and the distinction between community property and separate property can be very confusing. If you want to protect your assets or property or if you want guidance on how to draft a marital property agreement, you should consult with a lawyer. A divorce lawyer has experience with marital property agreements and can advise you on how to best divide your marital property.

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Last Modified: 05-04-2015 04:12 PM PDT

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