When couples in Illinois begin the divorce process, they will need to divide their property. Not all property, however, gets divided. Separate assets, usually assets acquired before marriage, will often remain the property of the spouse who acquired it. Marital property, which includes assets acquired during the marriage, will be divided equitably between the spouses. There are some assets, however, such as inheritances, which can pose challenges during the division of property.
Is an inheritance separate or marital property?
Initially, an inheritance is considered separate property even if received once the marriage took place, similar to gifts and court settlements. With inheritances, there is the possibility that it becomes commingled and therefore considered marital property when the marriage is dissolved. Commingled property is separate property that has been used for joint purposes. For example, if one spouse receives an inheritance and that inheritance is used to pay for the couple’s expenses, the inheritance might become commingled. If the inheritance is real estate, and the spouses use their joint money for repairs and upkeep of the property, that inheritance becomes commingled.
Protecting an inheritance during divorce
There are several ways that a person can protect their inheritance to ensure that it remains separate property in the case of a divorce. These ways include:
- Signing a prenup before marriage that includes the inheritance as separate property
- Signing a postnup after marriage that establishes the inheritance as separate property
- Being intentional and careful about keeping the inheritance separate from joint assets to avoid commingling during marriage
While divorce is not usually what couples think of when they get married, protecting an anticipated or already received inheritance in the case of a divorce is a good plan. However, be careful about communicating your intentions to keep the inheritance separate during the marriage so that you can have documentation to show this if there is commingling by error.
