Protecting an Inheritance in the Event of Divorce

Inherited Assets in a Florida Divorce

Inherited assets normally remain the property of the person who received the inheritance. Some exceptions can change that, however, including whether the assets were commingled with marital assets or whether the assets were used to support the marriage. When the couple undergoes a divorce, the inheritor of the assets may consider those assets to be his or hers alone.

Florida is an equitable distribution state, which means marital property is divided fairly. The question arises, however, what is fair? This is especially true if the divorce is contentious. If the couple doesn’t agree on the division, a judge will make the decision.

What Are Marital Assets

Any property or money that is used by both parties, such as funds in a joint bank account, or a house and/or car purchased and used by both are marital property.

What Is Separate Property

Separate property – or nonmarital property – can include the following:

  1. Part of an award for personal injury.
  2. Repayment for lost earnings.
  3. Assets acquired by a spouse using non-marital assets, and kept separate from marital property.
  4. Any assets and property agreed as being nonmarital through a prenuptial or post-nuptial agreement.
  5. Any bequest or inheritance to one party before or during the marriage is separate property. If the inheritance becomes commingled with marital funds, it can become marital property.
  6. Gifts to one party given before or during the marriage that are not placed in joint ownership or used for the benefit of the other spouse.

How An Inheritance May Become Marital Property

Receiving an inheritance seems like an upfront transaction – a grandparent left you a car or a house. Technically, it should be your property. However, while you are married, both you and your spouse drive the car and use the house. And let’s say, marital funds were used to pay for repairs on the car and home; to make payments on the mortgage; and to enhance the value of the car and home. When you divorce, a judge may consider the house and/or car marital property as it was used for the benefit of both of you, and marital funds were used to enhance the value of each property. The spouse who did not inherit the property may well be entitled to a portion of it unless property arrangements have been made.

How To Protect Personal Property such an Inheritance

The most logical way to protect personal property is to not commingle it with marital property. If the inheritance is in place before the marriage, a prenuptial agreement should prevent it from becoming marital property. If the inheritance is received during the marriage, a postnuptial agreement can be drawn up to protect those assets. If there is no agreement, the inheritor needs to take copious precautions and prevent commingling said personal property. 

Personal assets should be diligently kept separate from any marital assets. They should not be kept in a joint account, nor should they be used to pay for marital expenses, such as a mortgage that is in both of your names.

If the personal assets are used to improve any marital assets – such as repairing the marital home – this may be considered a commingling of funds. If inherited assets have already been commingled, these can be tracked to determine what percentage is separate or what percentage is marital.

Can an Inheritance Affect Alimony

Even if you have protected your inheritance as personal property and it was not divided as marital property during the divorce proceedings, alimony payments may still be impacted. In Florida, where a court is concerned about “fair distribution,” a personal inheritance may make you the higher-earning or wealthier spouse, and this can be interpreted as a sign that you are able to pay alimony, especially if the inheritance is significant and the spouse is unemployed. The court may order you to pay more alimony than it might otherwise have. 

What if the Value of the Inheritance Changes

Assets and inheritance can increase in value. You may have inherited a house that had X value when you received it and was non-marital property. Over the span of a few years, you and your spouse spent marital assets improving the house, increasing its value considerably. The difference in value – the increase – becomes a marital asset. A judge may determine to split the increase in value while the inheritor of the house retains the house at the inheritance value.

Gifts Given to Each Other During the Marriage

If one spouse gifts his or her partner with presents during the marriage, this is marital property. In other words, if one spouse gives the other spouse $100,000 worth of jewelry, these gems can be considered marital property during the divorce settlement. This may contradict the concept of a “gift,” but that is simply how the court will view it. 

Issues Regarding Assets to Keep in Mind

During a divorce, a once-in-love couple can become consumed with bitterness. The wealthier of the two partners may well be tempted to hide assets out of spite. That is indeed a bad idea and should be avoided. If the court finds out, it will punish the deceiving spouse. It is critical to be absolutely honest with your attorney about all assets and let him or her decide on the best way to legally protect them.


Inherited property can have value, and it can also have tremendous sentimental meaning. In the event of a divorce, spouses want to assure that an inheritance to them personally is well protected from a division of assets by the court. This can be done by keeping personal and marital assets separate from each other, and a family law attorney can help you determine the best way to do so.

The legal process can get difficult, which is why we always recommend that you seek the assistance of counsel; or at least have a consultation. Schedule a consultation with one of our attorneys today to review the issues of your case, the legal options you may have, and certain rights that pertain to your unique situation.

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