Are your inheritances and gifts yours to keep in a divorce?

On Behalf of | Feb 12, 2021 | Family Law

When it comes to dividing property with your spouse in divorce, you may have heard that you can keep any inheritances and gifts that you alone received from third parties. Maybe your grandmother left you a sizeable amount of money when she died. Your parents may have decided to give you some valuable jewelry and antique items when they retired to Florida rather than wait and leave them to you in their will.

So those items, just like assets that you had prior to your marriage, are considered separate property that aren’t subject to division like marital property is, right?

Understanding commingling

Typically, they wouldn’t be subject to Indiana’s equitable division laws. However, if they have been commingled with marital assets, they may also be considered marital assets to which your spouse has some claim if they want to make it.

Commingling often happens with money. Say you put that inheritance in a joint account that the two of you use to pay bills or for other purposes. That’s commingling. However, maybe your parents left you a valuable piece of artwork that needed some restoration work or a new frame. If that was paid for out of marital assets, your spouse could seek a portion of the value of that artwork.

How a prenup or postnup can prevent problems

Sometimes, when drawing up a prenuptial agreement, couples will stipulate that any inheritances or gifts that either spouse receives individually during the marriage are that spouse’s to keep in a potential divorce. However, if you don’t have a prenuptial agreement or a postnuptial agreement that states that, you may end up losing a portion these assets (or something else of equivalent value) if the matter goes before a judge. The court must divide marital assets equitably or fairly – although not necessarily 50-50.

If you or your spouse has any inheritances or gifts, it’s best to discuss them with your family law attorney to determine whether they’ve been commingled and are subject to division. Your attorney can also help you negotiate an agreement with your spouse so that you don’t have to place the decision in the hands of a judge.