If you are the recipient of a significant inheritance, you may wonder what will happen to it in your divorce. The answer to that question depends on many factors.
In general, according to the Code of Virginia, inheritances are not included as marital property. That means you will be able to keep your inheritance. Of course, there are some exceptions.
Separate and marital property
It will help you to first understand the difference between separate property, which is what belongs only to you, and marital property, which belongs to you and your spouse jointly. Any separate property is yours and not split in the divorce. The court will split all marital property.
Separate property is that which you owned prior to your marriage. Inheritance is generally thought to be separate because it was legally given to only you. This makes it your separate property even if you received it during your marriage.
Inheritances are usually separate property, but if you commingle it with marital property, it could become marital property. Comingling means you use your inheritance to pay for property that will belong to you and your spouse.
For example, if you use your inheritance to buy a home that is in your name and your spouse’s name, the portion of the inheritance used becomes marital property. The home is marital property and any money put into it is as well. If you did not use all of your inheritance to buy the home, the part you did not use remains separate.
You will keep any inheritance you kept separate, but any you comingled is at risk in the divorce. It is essential to keep good records to prove where your inheritance is and its use to avoid losing it in your divorce.