Inheritance and Divorce in Illinois
In an Illinois divorce, all assets acquired during a marriage are subject to property division except “property acquired by gift, legacy, or descent.” Inherited property and inheritance money usually fall into these categories as separate property, unless the court rules otherwise.
Who Keeps the Inheritance in an Illinois Divorce?
Inheritances are often considered non-marital property, so the person who received the inheritance usually keeps it. But there are some instances where inheritances are split between both parties. To understand inheritance in Illinois, it is important to understand property division.
How Is Property Divided in Illinois?
In a divorce, the property division process equitably separates each party’s assets. The Illinois courts use the term equitable because equitable does not mean equal. Rather than a 50/50 split, the Illinois statutes outline how some assets are split equally and some are given to their original owner.
Any martial property is split equally 50/50. Marital property includes most assets obtained during the marriage. Some assets not included are any “property acquired by gift, legacy, or descent.”[1] Most often, inheritance money and inherited assets fall under this statute making them non-marital property.
When Is Inheritance Marital Property?
Inheritance becomes marital property when it is commingled. For example, when someone puts inheritance money into a shared fund that both parties use, it’s viewed as marital property. Or, when a spouse uses the inheritance to pay for a marital asset, that asset is marital property. The transformation of an inheritance depends on specific information and each case is unique. To best understand your situation, call Sterling Hughes to meet with a family law attorney.
Example Scenario – Inheritance in a Marriage
Here is an example–A woman gets $50,000 in inheritance money from her parents. She puts it into her bank account that is in her name alone. She then gets married and puts $40,000 down as the down payments on their new house. The couple pays off the house together in the coming years, and the wife never moves the leftover $10,000. Now the couple is divorcing, the woman wants her inheritance money.
She will not get the $40,000 she put into the house because the house is marital property. Instead, the house is subject to division. The $10,000 still left in her personal account is not split because it is a non-marital asset.
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Considerations
How to Protect an Inheritance in Illinois?
To protect an inheritance, keep it in an account that only you have access to and never use it for something related to the marriage. There are always exceptions and unique situations, so it is best to speak with a family law attorney or an estate planner to best prepare yourself.
Also, prenuptial agreements protect specific assets which can include inheritances. If you are already married, you can also look into getting a postnuptial agreement.
Is Illinois a Community Property State?
No, Illinois is not a community property state. Instead, Illinois is an equitable distribution state. This means marital assets are split based on what each party deserves, not simply 50/50.
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Frequently Asked Questions
Can your spouse take your inheritance in a divorce?
No, a spouse cannot take your inheritance in a divorce. But, if you manage the inheritance incorrectly or share it with your spouse, then it will be split with the rest of the marital property.
Is inheritance community property in Illinois?
In Illinois, inheritances are usually considered separate property, not community property. So, an inheritance generally stays with the spouse that received it.
Is an inheritance considered a marital asset?
An inheritance is a marital asset if it is commingled with the other spouse. Commingled means the asset is related to both parties. If an inheritance remains separate, then it is unlikely to be considered a marital asset.
Can my ex-wife go after my inheritance?
If someone receives an inheritance after a marriage, then the ex-spouse cannot go after it. Property gained after marriage is not subject to property division. But, if the inheritance is hidden during a divorce, the other spouse can certainly go after it.
References: 1. 750 ILCS § 5/503 (a)(1). Property, Support, and Attorney Fees.