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In a Florida Divorce, is an Inheritance Considered Marital Property?

On Behalf of | Sep 9, 2015 | Estate Planning, Family Law |

We often have clients ask whether assets they inherit are considered marital in the event of a Florida divorce. As a very general statement, assets originating during the marriage are usually considered marital. For example, if either spouse works, their earnings are marital–regardless of which spouse earns them. However, when it comes to inherited assets, the general rule is that they are not marital

Florida Statutes Section 61.075 (6)(b)(2) provides that non-marital assets include: “Assets acquired separately by either party by noninterspousal gift,bequest, devise, or descent, and assets acquired in exchange for such assets.” So when a spouse inherits assets, they start with the presumption of being non-marital. This is true regardless of whether the inheritance is by Will or according to Florida’s intestacy statute.

With this having been said as a general rule, there is one glaring exception of which any inheriting spouse should be aware. Florida courts have repeated recognized that when non-marital assets are commingled with marital assets, they become marital. Perhaps an example can best demonstrate this principle.

If a wife’s parents leave her an inheritance of $50,000 in cash and she deposits it in an account only in her name, and if she never adds any other marital funds to it, it will remain non-marital. However, if when she receives it she deposits it into a joint account, it becomes marital. Also, if she deposits it in an account only in her name but later adds money she earns from her employment, the account becomes marital.

We have some recommendations when a spouse receives an inheritance and wishes to protect it in the event of a divorce. First, before receiving the inherited assets, set up a new separate account to receive the assets. Some clients even go so far as to name the account such as this: “John Doe, Inheritance Account.” Second, do not ever put any other assets into the account–leave it for only the inherited assets. This would be true even if you intended to deposit other assets temporarily into the account. Bottom line is in protecting inherited assets in the event of divorce: NEVER EVER COMMINGLE INHERITED ASSETS! If you do and you get divorced, you can kiss one-half of them goodbye!


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