Inheritances in Divorce

Family Law Attorneys Serving Individuals in the Atlanta Area

Most people understand that divorcing spouses must divide their assets, including real estate, bank account funds, personal possessions, and so on. One question that frequently arises is how an inheritance is treated in divorce. The answer may depend upon several factors, and when there is a dispute, the issue may have to be resolved by a judge. If you have questions regarding how a particular inheritance may be treated, the lawyers at Rowsey & Stelter can assist you. Many Atlanta residents have sought our guidance with a variety of complicated family law issues that arise during a divorce.

Classifying Inheritances as Separate or Marital Property

When dividing assets in a Georgia divorce, a distinction is made between separate property and marital property. Separate property is owned exclusively by only one spouse, and that property is not subject to division in divorce. Marital property is property jointly owned by both spouses, and it is subject to division. The separate or marital character of property is determined by when and how it was acquired, as well as how the spouses handled the property during the marriage.

As a general rule, inherited property (whether real estate, personal property, or funds) is the separate property of the spouse who inherited it, assuming the bequest was to one spouse and not to both spouses jointly. This rule applies whether the property was acquired before or during the marriage.

However, the character of inherited property can change from separate to marital if the spouse who inherits the property “commingles” the separate property with marital property, or makes a “gift” to the marriage of the separate property. In many instances, unless the inheriting spouse keeps the property—and all matters related to that property—entirely separate from marital property, determining the nature of the property as separate or marital in divorce can be a rather complicated matter.

For example, if one spouse inherits funds and places those funds in a joint account that is used by both spouses for marital expenses and purchases, a court may legitimately find that the intention of the inheriting spouse was to make a gift of the funds to the marriage. In some cases, a spouse who does this when the marriage is intact will strenuously argue, in a subsequent divorce, that the funds are separate property. But unless the inheriting spouse can specifically account for and trace the funds that were inherited, he or she will have difficulty prevailing.

At the same time, if one spouse inherits a house, and both spouses later use joint funds to improve the property or manage it as an investment, a court might find that some proportion of the house is separate, and another portion marital. The determination will depend upon the intent and behavior of the parties with respect to the property.

When inherited property is kept strictly separate from marital assets, there is little argument that it constitutes separate property. However, this does not always leave a non-inheriting spouse in a significantly inferior financial position following divorce. In Georgia, the division of assets is based upon what is “equitable,” or fair, and this does not require the equal division of marital assets. If one spouse has significant separate property by inheritance, a court has discretion to award a greater portion of the marital assets to the less wealthy spouse to enable that spouse to maintain a quality of life closer to what he or she was accustomed to during marriage, particularly if the marriage lasted a long time.

Discuss Your Divorce Concerns with an Atlanta Lawyer

The divorce attorneys at Rowsey & Stelter can assist people in the Atlanta area and elsewhere in Georgia with advice and representation. We have extensive experience handling difficult division of assets issues. If you need help with an inheritance issue in divorce, call us at (770) 993-5317 or use our online form to set up a consultation. We also serve individuals in Roswell, Sandy Springs, Johns Creek, and other communities throughout Georgia.