Is My Spouse Entitled to My Inheritance After Divorce?

That depends. Usually, inheritance is a separate asset, not marital, but sometimes an inheritance can start out as marital or become marital property. It is possible, however, for an inheritance to start as and remain separate property that would not have to get shared with your spouse in a divorce.

Questions of marital versus separate property can be tricky, so you will want to talk to a North Carolina divorce law firm for guidance on this issue. Let’s explore the question, is my spouse entitled to my inheritance after divorce?

What if the Divorce Already Happened?

The divorce decree and financial papers that get filed with the court should list every asset. If the judge set aside your inheritance to you as separate property and nothing changed with that asset since then, and the judge signed your decree more than 30 days ago, your former spouse should not have any claim to your inheritance.

If you did not receive your inheritance until after the divorce was final, your former spouse is highly unlikely to have a legal claim on those assets. Most divorce decrees state that the former spouses cannot inherit from each other automatically. The only way your former spouse could inherit from you would be if you made a new will after the divorce became final and left something to your former spouse in that document.

The General Rule About Inheritance and Divorce

Usually, if you receive a gift or inheritance during the marriage and you keep the asset entirely separate, it is your separate property during and after divorce. There are, however, exceptions to this rule.

Exceptions to the General Rule

There are several exceptions to the general rule that an inheritance is separate, not marital property.

  • If your former spouse was a beneficiary under the will or living trust, they might have a claim to a portion of your inheritance. Sometimes, a person with married adult children will leave the inheritance to the biological child and their spouse. For example, the will might give $50,000 to the adult daughter and her husband. In this situation, the court might treat the inheritance as marital property.
  • Depositing the inherited funds into a joint bank account. If you inherited assets in your name only, your inheritance could start out as separate property but lose that protected status because of actions that you take after receiving the asset. Let’s say that you inherit $50,000 and deposit it into a bank or investment account that you and your spouse own jointly. That action, in effect, gave your spouse a gift of half of the $50,000. 
  • Using the inherited funds to purchase or improve a joint asset. If you use your inheritance, for example, as a down payment on the purchase of a house that you and your spouse buy and title jointly, you just gave your spouse a gift of half of the down payment amount.
  • Titling the asset jointly after you receive it. Finally, let’s say that you inherit your parents’ home. If you later sign a Quit Claim Deed retitling the house into your name and your spouse’s name, jointly, you just gifted half the value of that property to your spouse.

North Carolina follows the principle of equitable distribution, which means that the judge gets the discretion to set aside more than half of the marital assets to one spouse. If you manage to keep your inheritance separate, you might get less than half of the marital assets when the property gets distributed in the divorce. A North Carolina family law can represent you in your divorce and deal with the property and other issues. For legal help contact our office today, we gladly offer a free consultation.