There are many ways a will and subsequent inheritance can change. The most common reason is due to divorce. When you’re involved in your spouse’s will, divorce will change your inheritance.
In most of the country, a divorce before a co-written will automatically revokes the former spouse’s beneficiary rights. The law treats divorce as a death in many ways, and can be applied to other beneficiary inheritances, as well. These include retirement accounts, insurance policies, and trusts.
During a divorce, the inheritance will pass down to the contingent beneficiary rather than the spouse, who is now barred from the paperwork. If there is not a contingent beneficiary, the closest surviving relative will inherit any assets.
For example, while married, a couple drafts individual wills naming each other as the primary beneficiary. If they divorced, their son, listed as the contingent beneficiary, would receive any inheritance listed in either will.
In some states, though, a divorce revokes a spouse’s entire family from a will. In the above scenario, this means the inheritance as defined in each will would stay within the will-writers immediate family. These scenarios are prone to confusion and challenges, so it’s a good idea to hire an attorney if you find yourself in a situation like this.
Inheritances, by law, are not considered marital property. They are regarded as separate property belonging to the individual who received the gift. Therefore, the estate is not always divided equally in the event of the divorce.
If the inheritance is a gift between spouses, the rules vary between states. If the estate is deposited for marital expenses into a joint account, for example, it may lose its separate status. This is referred to as comingling of the inheritance. If the funds or gift is used to benefit both individuals, it will no longer be separate property and may be divided during a divorce.
If you enter a marriage with a prior inheritance, state law will likely govern the situation. Often, this situation abides by the same protocol as an inheritance received during the marriage. If the funds exist in a joint bank account, this signifies a co-mingling event. If the funds are separate, the individual who received the inheritance may keep them in the event of a divorce.
The general rule is that an inheritance used for joint purposes, once co-mingled, converts into shared marital property. Often, the best way to keep premarital assets protected is to sign a prenuptial agreement. This agreement identifies ownership of any assets before marriage.
Divorce is a complicated and emotional process, especially when large amounts of money and other assets are involved. When it comes to inheritance and property division, it’s best to seek out a divorce attorney with experience in inheritance battles. Call Estevez-Pazos Law Firm today at (305) 717-7130 so we can do our part to make sure you receive what is rightfully yours. We gladly welcome clients in Coral Gables, South Miami, Pinecrest and all throughout Miami-Dade County.
