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Inheritance and Divorce: What You Need to Know and How to Protect Yourself

inheritance and divorce

By Cary Jacobson, Divorce Attorney, Founder, Jacobson Family Law

Inheritance and divorce is a complicated subject. Yet, the laws are pretty simple. Every state has its own law, but if you live in the state of Maryland, inheritance is considered a non-marital asset. What that means is, if you get divorced, by law, you are entitled to all of your inheritance.

That said, there is an exception. If you have co-mingled the inheritance, meaning if you have put other funds into the account, the inheritance then becomes marital money, and by law, it should be split 50/50 in a divorce. For example, if you inherited $75,000 and you put that money into an account and never deposited other funds into that account, by law, the entire $75,000 is yours in the divorce. But, if you added funds to the account (even one time) while you were married, and now the account has $90,000 in it, the account becomes a joint account (marital assets) and by law, you would be required to give your ex half of the value of the account–$45,000.

It seems unfair, and it’s upsetting to a lot of people, who didn’t know the laws on inheritance during their marriage and co-mingled funds. People also don’t go into a marriage planning to be divorced, so they might know the  inheritance law, but add to the inheritance account, anyhow.

The good news is, in many cases, if you get divorced via mediation, you can negotiate and keep your inheritance even if you co-mingled funds. Mediation is about discussions and working together (with the mediator) to come up with a divorce settlement in which both parties feel like they got a fair deal. Because there is so much dialogue and the process is amicable, a spouse might agree to give an inheritance, even though he or she knows that by law, they are entitled to half.

Here are 5 ways to protect your inheritance before, during and after divorce:

1. Keep your inheritance separate.

As stated above, the best way to protect your inheritance is to keep it separate from your marital assets. Do not co-mingle your inheritance with marital funds. Instead, keep it in a separate bank account or investment account that is only in your name and do not deposit any other funds into the account. You are allowed to invest the money, and you are allowed to take money out, in needed. But you can’t deposit any funds into the account, even if they are funds from another inheritance, or from your paycheck.


Emily Rozwadowski, Estate Planning Attorney


2. Keep documentation.

Keep detailed records of your inheritance, including any transactions, withdrawals, and deposits made to and from the account. In the event of a divorce, these records can help you prove that the inheritance is your separate property and not subject to division.

3. Obtain a prenuptial or postnuptial agreement.

A prenuptial or postnuptial agreement can be an effective way to protect your inheritance. It is a legal document that outlines how assets, including inheritances, will be divided in the event of a divorce. By including a provision in the agreement that your inheritance will remain your separate property, you can ensure that it will not be subject to division in the event of a future divorce.

4. Avoid using your inheritance for joint expenses.

If you want to protect your inheritance during a divorce, avoid using it to pay for joint expenses like mortgage payments or vacations. Doing so can make it more difficult to prove that the inheritance is separate property.

5. Consult with an experienced attorney.

If you are concerned about protecting your inheritance during a divorce, consult with an experienced family law attorney at Jacobson Family Law. We can help you understand the Maryland laws and the best legal strategies to use to safeguard your inheritance.

Remember, as long as you keep your inheritance separate from your spouse and other marital assets, it will be considered your non-marital property in a divorce.

Like this article? Check out, “The Emotional Roller Coaster of Divorce”

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