Is My Husband's Inheritance Considered Marital Property? Lawyer Says...

This week, our family lawyers respond to a Marylander who's amicably divorcing her former spouse of 30+ years, but wonders if an old inheritance from her mother-in-law would be considered part of the "marital property" to be divided during divorce mediation.

The Question: Does my husband's old inheritance count as marital property during a divorce?

LawyerSays_Domestic_MediationAssetDivision_011421_ARS

Married for over 30 years, I moved out several months ago, and will be filing for divorce. No great precipitating event, if that matters. No minor children. I know that Maryland is an "equitable distribution" state.

So far, we have been keeping things civil and are mostly on the same page about division of our major assets -- ~$3M in 401Ks/IRAs, savings/investments, his pension, our house. We're both going to retain counsel, but my appointment is a couple weeks away. Neither of us want to blow tens of thousands of dollars on lawyers and have been talking about Mediation, worst case. Maybe we're delusional.

QUESTION: Approximately 15% of "our" assets came from an inheritance from his mother (in an account that arguably could be directly traced to the inheritance). It sounds to me like my husband is probably legally entitled to this money. So...when it comes to distributing assets, is this money "taken off the top" so to speak? As in, whatever is left after he gets that money is what we divide? Or is his having that money factored into the equation (meaning that I could possibly be awarded additional funds from other sources to make things more equitable)?

The Answer: That property is most likely "separate" and not included in any asset division calculations as part of the divorce process.

First of all, divorce mediation does not sound delusional in your case, if you're already seeing things from your former partner's perspective! Mediation tends to work best when both parties want to compromise, and you're already more than halfway there.

You're also most likely right, in that those funds are probably not considered marital property and thus up for division as part of the divorce settlement. Maryland law tends to exclude those sorts of inheritances to single parties as strictly "separate" from any of the joint "marital" property that's then divided up into equal portions between those involved.

And yes, your gut thought is most likely correct, as well: As separate property, that money would be "taken off the top" and completely removed from the asset calculations...

... at least, it wouldn't be included directly.

See, if any of those funds went toward the relationship -- for example, house maintenance -- your husband wouldn't necessarily get those funds back directly.

In other words, he would not be entitled to half of the value of the house, plus whatever monies he poured in for maintenance from the separate property account, as part of his division of the assets during the divorce. Maryland law would consider that investment "absorbed" into the marital property, in a manner of speaking. Therefore, you each would be entitled to half of the marital house value.

He might also use the funds in that separate property account to "buy you out" of desirable mutually owned marital assets.

For example, perhaps he wants to keep the family home instead of selling it and splitting the proceeds. He could have the house appraised and then pay you whatever amount the court says you are owed using those separate funds, if he so wished.

Of course, this is just going off of what you've put online. Depending on the circumstances, those funds may, indeed, be marital property and thus subject to equal division. But, we can't say for sure without looking at all the paperwork involved.

Best of luck during your mediation, and we hope you both find your way to bright new beginnings.

Get Answers to Your Burning Legal Questions!

You can submit your own question to #LegalSays below, or just skip the wait and go straight to scheduling your own (free) first consultation with a JC Law attorney at your convenience.

 

Our general disclaimer: We're lawyers, but not necessarily your lawyer, and do not represent the individual who asked this question. We're providing this information for general educational purposes based on the publicly available information provided by the anonymous Internet user. Any number of details may change how this individual's attorney may pursue this legal situation, differently from how we suppose above. If you have a similar question, then you should consult with a lawyer about your specific situation to get a "real" response!