Inheritance and Virginia Divorce

Posted on Jun 12, 2020 by Katie Carter

Lots of people are, at some point or another, the beneficiary of some kind of inheritance. For many of us, it’s not significant monetarily, but, for others, it is. In fact, for some people, it’s a tremendous amount.

An inheritance can be life changing. I’ve had clients who live in a home that they inherited, that live off of shockingly large trust funds, or who are looking forward to an inheritance at some point in the future.

I’ve also had clients whose husbands are the beneficiaries of an inheritance – which is definitely not the preferred scenario.

Under the law, inheritances are handled pretty specifically. Marital property is divided in divorce. But some categories of property are separate – like inheritances, or gifts given from someone other than a spouse to one party.

I’ll say it again. Generally speaking, inheritances are separate property. That means that they are not divided in divorce. If the property was inherited by both of you jointly, it is marital – but that’s often not the case. In fact, that’s rarely the case.

When you’re the beneficiary of the inheritance

If it’s your inheritance, great! You’ll get to keep it, as long as it was inherited by you alone (as in, not left jointly to you and your husband).

People tell me sometimes that they want to hurry up and separate before they inherit, or that they want to wait on divorce because they don’t want to split their inheritance. It…doesn’t really work like that.

If you’ve inherited, it’s yours separately, no matter when you separate and/or eventually divorce. So, there’s no point waiting or hurrying up, at least, not on that basis alone.

So, it won’t have any impact on your divorce? Well, not quite. It could, in the sense that you may be disqualified from spousal support, even if you and your husband earned quite different incomes during the marriage. Spousal support is based, first and foremost, on your need – so, if your inheritance is great enough to mean that you really don’t have a need to receive support from your husband, spousal support may not be an option.

Notice I say “may”. It’s not a guaranteed disqualifier; there are also other factors involved. But it’s a question worth asking, and it’s certainly not a guarantee that you will or won’t receive support.

When your husband is the beneficiary of an inheritance

This is a trickier situation. Obviously, the same law applies. If he inherited the money and/or property, you’re not entitled to it.
That’s complicated, especially when you live in a home that was inherited, or that was paid for with inherited money. To the extent that you put marital money in – say, to do repairs, or to pay the mortgage after an inherited down payment – you can take marital money out and divide it. But that may or may not be enough to put you in the position you wish you were in.

It seems unfair. You’ve grown accustomed to a certain standard of living. But what you’re entitled to, in a divorce, is the benefit of what the two of you earned during the course of the marriage. Whatever he was given or inherited was not “earned” by either party, and it belongs solely to the party who was given or inherited it.

But it can help form the basis of an argument for spousal support. We’ll look at your need, and we’ll also look at his ability to pay. His inherited funds may give him the ability to pay a higher level of support – and the standard of living that you enjoyed during the marriage is one of the factors the statute allows the judge to consider.

It’s not a perfect science. It’s not science at all. It’s about the law and what it allows. Fortunately, though, there is a sort of cut and dry rule about how inheritances are handled. You may not love that part of it if you fall on the other side of the inheritance, but the good part is that there’s really often very little need to litigate (except as it relates to the amount of spousal support you might receive). Not litigating can save you money, time (especially right now, with the courts closed!), and blood pressure points. And, after all, if you do litigate, there’s a chance you’ll have spent all the money and still not get the result that you wished for.

For more information, or to schedule an appointment with one of our licensed and experienced Virginia divorce and custody attorneys, give our office a call at 757-425-5200.