Kathy D. Sheive Attorney at Law

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Where do inheritances fit into your divorce?

The longer you are married, the more likely you will lose loved ones to old age, illnesses and perhaps injuries. However, you may receive an inheritance from one of these beloved individuals. Now that your marriage has come to an end, you may wonder whether it constitutes as part of the marital estate.

If it does, then it would be subject to division, which means that your spouse would receive a portion of it. If it is your separate property, you get to keep your inheritance. The answer may not be as cut-and-dry as you had hoped.

Does it matter when you received the inheritance?

Under normal circumstances, Florida law would consider your inheritance as separate property regardless of whether you received it before or during your marriage. This means that you would not have to share it with your spouse. That's the good news. There is some bad news, though. If you decided to share your inheritance with your spouse, put it into a joint account or put marital funds into an account containing your inheritance, things get more complicated.

Commingling your inheritance with marital assets negates the presumption that it is separate property. The court may only allow you to keep a portion of your inheritance as separate property, if any. If you didn't intend to share your inheritance, you can tell the court that, but proving it is not easy.

Yet another reason to avoid going to court

Because the issue of your inheritance could get tricky, you may want to avoid letting the court handle your property division. If you and your spouse agree, mediation could prove useful. You may be able to keep your inheritance out of the marital estate and keep all of it. Of course, this may mean that you would exchange another asset of similar value for it. This would be helpful if you inherited a house, boat or some other property.

Cash inheritances provide a different challenge, depending on what you did with it when you received it. If you put it into a separate account and never mixed it with marital assets, you are probably okay. However, Florida is an equitable distribution state, and the court will want to ensure that any agreement you reach with your spouse does not put one of you at a significant disadvantage. For this reason, you need to carefully consider how to handle the situation, which may take some research and compromise.

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