Because Illinois is an equitable distribution state, divorce judges typically split marital assets in as fair a manner as possible. “Fair” does not always equate to “50/50.” However, like in community property states, a family law judge must first decide if an asset is marital or separate before including it in the property division proceedings. Because the courts consider an inheritance an asset, the judge presiding over your case must treat it as he or she would a bank account, a home or a couch, beginning with labeling it as marital or separate.
According to FindLaw, an inheritance differs from a typical asset in that it does not matter whether you acquired it before or after your union. That said, the courts typically consider inheritances as separate property and therefore keep them out of the property division proceedings. This is true regardless of when a person received his or her bequests.
However, if you or your spouse used your inheritance to benefit the family unit, the courts may consider it marital property. For instance, say you deposited all the money you received from a deceased grandmother into yours and your spouse’s joint account, which you used to pay your monthly expenses. At this point, the inheritance would lose its separate status. Likewise, if you used your inheritance to improve the family home, pay for the kids’ private education or purchase a vacation house, the courts may consider it marital property.
As you may have gleaned, comingling is key. If you want to protect your inheritance, you need to treat it as separate property. You can do this by signing a prenuptial or post-nuptial agreement that clearly states how you and your spouse plan to treat existing or future inheritances. You can also place the inherited funds into a separate bank account to which only you have access.
In the event that you comingle funds unintentionally, the burden of proof is on you (or your spouse, depending on who received the inheritance) to prove that you never intended to share the funds. You may have a hard time proving this, which is why you should always consult with a legal professional who can help you best handle this type of issue.
The information in this post should not be used as legal advice. It is for educational purposes only.