Crystal Wright | June 21, 2022 | Divorce
Generally, inheritance is considered separate property during a divorce action. Therefore, your spouse should not be entitled to the inheritance you receive before or after a divorce. It remains yours unless you convert the funds into marital property.
After your divorce, whether your spouse receives an inheritance from your estate depends on the terms of your will. Unfortunately, many spouses forget to change their will and other estate documents after a divorce.
Georgia’s Laws for Property Division in a Divorce
“Fairly” does not necessarily mean equally, as in a community property state. If the parties cannot decide how to divide marital property, the court decides what a fair distribution is based on the facts of the case.
Factors that courts consider when dividing property during a divorce proceeding include:
- Each spouse’s financial needs and resources
- The length of the marriage
- Each spouse’s general health, education, and age
- The ability of each spouse to earn an income
- The tax consequences of property division
- The contribution of each spouse to the marriage
- The spouse’s conduct during the marriage
- Whether the parties have a marital agreement
- The spouses’ separate property and assets
Marital property is subject to property division during a divorce. Inheritance marital property generally means property the spouses acquired during their marriage. However, there are a few exceptions.
Separate property is not subject to property division. It is property the spouses owned before marriage and maintained as separate property throughout the marriage. Some property obtained during a marriage could be separate property.
Inheritances Are Generally Separate Property
Even if you receive an inheritance during your marriage, inheritances are considered separate property. Therefore, as long as you maintain the separate property status throughout the marriage, inheritances should not be subject to property division laws.
However, if you commingle the inherited assets with marital assets, your spouse might be entitled to a portion of the inheritance. For example, if you deposit inherited funds into a joint bank account, the inherited funds become marital property.
Likewise, if you sell inherited property and purchase property titled jointly with your spouse, the property is subject to property division laws. For example, you sell antiques inherited from your mother and use the funds to purchase a beach home. If the beach home is titled jointly with your spouse, the beach house is marital property.
Additionally, if you use marital funds to improve an inherited property, the increase in the property value could be considered marital property. For example, you use funds from your joint bank account to pay the mortgage payments on an inherited home. The increase in net value could be considered marital property.
The best way to protect inheritances from your spouse is to keep the inherited property in an account titled in your name only. Never commingle the funds or use marital funds to pay lien payments or improve a property.
If you do not have a prenuptial agreement, you might want to consider a post-nuptial agreement to protect inheritances during a divorce. Marital agreements can also determine whether a spouse receives an inheritance in the event of a divorce.
Can My Spouse Inherit From My Estate After a Divorce?
Ex-spouses are not entitled to inheritance from their former spouse’s estate unless they are included in the will. Therefore, it is crucial that you change your will as soon as you decide to divorce your spouse. If not, your ex-spouse could inherit your entire estate even though the divorce occurred years before your death.
In addition to changing your will, you should also change your beneficiary designations. Specific property passes directly to beneficiaries outside of a person’s probate estate. Examples include life insurance policies, annuities, retirement accounts, and some jointly owned assets.
How Can I Protect My Inheritance From My Spouse?
Check with your Lawrenceville divorce lawyer about changing your beneficiaries. You might need to wait until after the divorce is granted to modify the beneficiary designations.
You might be ordered to keep your spouse as the beneficiary of an account. For example, a judge might order you to keep your spouse as the beneficiary of a life insurance policy intended to support your children if you die. However, when your children are over 18 years old, the court might allow you to change the beneficiary.
You should ensure that you take the correct steps to prevent your ex-spouse from receiving your inheritance unless that is your intention.
Contact the Divorce Lawyers at Crystal Wright Law To Get Legal Assistance Today
To learn more and get the help you deserve, call our divorce & family law firm at (404) 594-2143 or reach out to Crystal Wright Law online by visiting our contact us page.
You can also visit our law firm at 440 S. Perry Street Suite 105, Lawrenceville, GA 30046.