Key Takeaways
- In most cases, an inheritance is considered separate property.
- If you comingle funds or assets from an inheritance, they can become marital property, which is subject to division during a divorce.
- You must keep cash from an inheritance in a separate bank account in your name only, or else the inheritance can become marital property.
- After receiving an inheritance, speak to an estate planning attorney to learn more about protecting your inheritance.
- A prenuptial or post-nuptial agreement can show intent that you planned to keep your inheritance separate.
When you receive an inheritance in Virginia, it is your separate property, even though you are married. However, it can become marital property, subject to division during a divorce. When does an inheritance become marital property? When you commingle it with marital property. If you are married and wish to keep an inheritance separate, what you literally do is keep it in a separate account. If you have inherited real estate, don’t “add your spouse” to the deed. Because you cannot see into the future, you should always take steps to keep an inheritance separate from marital property – even when divorce seems to be an impossibility. An estate planning attorney at Virginia Beach Law Group can guide you in protecting your inheritance.
What Factors Determine Whether Your Ex-Spouse Gets Your Inheritance?
Generally, Virginia law looks at your ex-spouse as someone who died prior to you – that person does not exist for purposes of your estate – an ex does not inherit anything by intestate descent. However, if you are in an incomplete divorce and you pass away lawfully wedded, even if separated, the surviving spouse might make a successful run at inherited property that’s in your estate. A surviving spouse might also be a part-owner of real estate if you were not careful in splitting up assets that accumulated during the blissful part of your marriage. Or maybe there’s a Will and Spouse is still in it…
Pro-tip: tell your estate planning attorney EVERYTHING.
When Does an Inheritance Become Marital Property?
Several factors will determine whether your ex-spouse gets part or all of your inheritance, including:
- Comingling funds, such as putting cash into a joint bank account or using an inheritance to pay for marital property.
- Adding your spouse’s name to any real estate you inherited causes it to become marital property.
- Registering vehicles received in an inheritance or purchased with an inheritance with or into your spouse’s name could cause them to become marital property.
- Putting inherited stocks into a joint account with your spouse causes it to become marital property.
- Using money or other assets from your inheritance for the marital estate, e.g., for paying a mortgage or otherwise supporting the marital home.
Who Should You Talk to If You Are Worried About Losing Your Inheritance?
Once you find out you are receiving an inheritance, you should contact a financial advisor to ensure you are following all of the correct steps to receive your full inheritance. You should also contact an estate planning attorney at Virginia Beach Law Group to learn how to protect your inheritance in the event of a divorce and to learn how to ensure the people you want to receive it after your death get it.
Does a Pre-Nup or Post-Nup Help When Dealing with Inheritances?
A prenuptial or postnuptial agreement can help determine the intent of the inheritance and keep the funds separate from other marital property. Additionally, if you had a will when you were married but never changed it after you divorced, the law protects you by severing any bequest to your ex-spouse. However, there is always a chance that your ex-spouse will try to collect before anyone finds out the divorce was final.
Your safest action is to write a new will before or during the divorce process, as you never know whether something could happen. A sudden illness or an accident that takes your life during divorce proceedings could cause your soon-to-be ex-spouse entitlement to your inheritance.
Why Clients Choose Virginia Beach Law Group
Probate law can be complex depending on a person’s situation. An experienced estate planning attorney at Virginia Beach Law Group can guide you in creating an estate that protects your inheritance in the event that you might divorce or if you are going through a divorce when you receive the inheritance.
Testimonials
“Dave really cares about his clients, if you need Wills & Estate planning in Virginia, I highly recommend this law firm. They are compassionate, and extremely thorough.” — Sarah K.
Worried About Losing Your Inheritance? Contact Us Today.
If you receive an inheritance, contact an estate planning attorney at Virginia Beach Law Group if you are concerned about your ex-spouse or soon-to-be ex-spouse taking some or all of it during divorce proceedings. Contact us at 757-486-4529 or by completing our online contact form.
Frequently Asked Questions
Whether you die testate – with a will – or intestate, you may not have to go through probate if your estate is valued at less than $50,000 at the time of your death. Certain assets do not need to go through the probate process, including:
- Real estate where the title follows succession laws.
- Vehicles with two names on the title.
- Joint bank accounts.
- Most financial accounts where you named a beneficiary.
- Life insurance policies that list a beneficiary.
A probate attorney can review the inheritance you leave to your spouse and children to determine whether it needs to go through probate.
Marital property is anything you receive during the marriage – except an inheritance. You have to take specific actions to make an inheritance become marital property.
- If you title property in your spouse’s name, it becomes marital property.
- If you deposit money into a joint account with your spouse, it becomes marital property.
- If you do not want your soon-to-be ex-spouse to receive your inheritance, keep it in separate accounts in your name only.
- If you keep your inheritance in separate accounts but use the money or money from sold assets to benefit the marriage, it becomes marital property. For example, you received a chunk of cash and used half of it to pay off the mortgage on the marital home. The amount used becomes marital property.
In some cases, you might make a will during the marriage and forget about it after the divorce becomes finalized. If you never make another will, Virginia law states that the ex-spouse does not receive anything. It’s as if the ex-spouse died. If there is no one else named in the will, your property follows intestate succession.
However, in some cases, an ex-spouse is a better friend than a spouse. After a divorce, you can name an ex-spouse as a beneficiary or even the executor of your estate. If you make specific provisions in your will for an ex-spouse, the will is valid, and your ex will receive the property you named or will become the executor if you name them as the executor.
