Inheritance

My Spouse Can’t Touch My Inheritance in Divorce, Right? Well Maybe

What happens to inherited property in Massachusetts divorce? Many feel that it should be off-limits: “It has nothing to do with the marriage, why should it be considered for property division?” is the common question. However, much like most legal issues, what happens with inherited property in Massachusetts divorce depends on the circumstances.

First, inherited property is technically included in the “marital pot” to be considered for division. That’s because in MA, all property of either party, whether owned jointly or individually is considered for division. However, what actually happens to inherited property upon divorce depends on a number of factors.

First, the timing of acquisition is important. If the property was inherited before the marriage or after the divorce proceedings began, the non-inheriting spouse will have a more difficult time getting a share.

Another key factor is the extent to which the inherited property affected the couple’s finances. If the inherited property was segregated and remained that way throughout the marriage, the benefactor has a better chance of retaining more of its value. On the other hand, if it was “commingled” with marital property, or if it significantly impacted the couple’s finances or plans for retirement savings, it’s more likely to be subject to division.

Finally, length of the marriage is a significant factor: the shorter the marriage, the more likely it is that the spouse inheriting the property will retain all of its value.

These are just a few - but important - factors that are considered on the issue of inheritance in divorce. If divorce is on the horizon, it’s important to get advice as soon as possible about how to manage your affairs to give you the best chance of a favorable financial outcome on this issue and on your case generally.