How is inheritance divided in Virginia divorce?

Divorce is … complicated, especially emotionally. I probably don’t need to tell you that, because here you are, but still. I feel like it’s unreasonable and unrealistic to have this conversation without admitting that fact. So, there it is.

In divorce, there are issues that are easy – meaning that the law is clear on that particular point. The marital share of the equity in the house is divided. Child support is calculated by guideline. Retirement accounts are divided according to the marital share, and each party receives roughly 50% of what was earned during the marriage (which, I should point out, may or may not be different than 50% of the overall value of the account). These are easy, settled facts.

Does that make them easy to accept? Not necessarily. I had a case once where a husband dragged it out for close to two years because he didn’t want to accept his wife’s marital share of his military retirement. He could not accept that, although he had earned it, she had a right to a portion of it. Could not wrap his mind around it. It was frustrating for me and for my client. Eventually he agreed – he had to, because the only alternative was to go to court (which would have cost him more money that he did not have) and then have the judge order it divided. Because, again, it’s an easy, settled area of law.

But the word “easy” there is mine. I doubt that, for him, there was anything at all easy about it. He felt – really, really felt, in his heart – that the money was his. It isn’t, under the law. I don’t share his opinion either, no matter how hard he felt he worked to earn it. No matter how much he minimized and devalued his wife’s contributions, the law didn’t. So, at the end of the day, the thing happened that I (and his attorney) had always known would happen: my client got her marital share. Happy story, right?

Sometimes it is, and sometimes it isn’t.

I’m writing today mostly because of a specific situation. I often do that. Unique stories speak to me in a way that the black and white law often doesn’t. I imagine they speak to you, too, and I hope that you find humanity and compassion in the pages on this site.
Today, I’m writing about inheritances.

Now, the law where inheritance is concerned is another one of those areas that is both easy and settled. If the money is inherited by one party, it is their separate property.

If the money was received and then spent to pay for bills or whatever, then that money is commingled and was gone. But if, on the other hand, that money was spent to buy a house, to improve a house, or to purchase an asset with equity involved, then that can be traced back to the original recipient and divided as separate property in a divorce.

In the case I’m talking about, nearly all of the benefit to the parties over the years – thirty plus years, in fact – came from inheritance received by the husband from his parents. The parties purchased a piece of rural property, added a swanky garage, built out the bougiest patio you’ve ever seen, and built an addition to their house that expanded their tiny little gallery kitchen, improved their den, and renovated every single bathroom. Like, total game changer. But it all came entirely from money that was inherited by the husband.

Ultimately, in the divorce, he’ll likely receive the benefit of most of all of that back. When you consider a divorce, the parties are really only entitled to the benefit of the marital assets – like, how the marital asserts paid down the mortgage, improved the property, or purchased other assets that have value. To the extent that other gifts – an inheritance is a gift, after all – did that, the benefit of those gifts goes back to the original recipient.

It pains me to write this – unless, of course, you’re the one who received the inheritance. In that case, it’s a benefit to you. But if it was your spouse, you may be SOL, as unfair as that probably seems. And it WOULD seem unfair, right? For years – thirty plus, in this case – the two benefitted together from the inheritance. Now, suddenly, it’s HIS, not hers. This house she built, these fixtures she picked out, this vision that she helped to create – isn’t hers.

But, on the other hand, as a lawyer, I see the law. I understand the concepts. It’s not a marital asset; she doesn’t get the benefit of the assets that the two didn’t earn. The money from his parents was a gift to him. As a mother to children myself, I know I wouldn’t want to think that the money I left my children would enrich their ex-spouse, rather than them, directly. I haven’t saved my whole life to eventually die and leave my children’s exes living in comfort! Right?

The law, when dividing property, traces the origin of the money, and then categorizes each asset as separate, marital, or hybrid.
In this case, we look at gifts from parties other than the spouses themselves as separate. An inheritance in particular can feel unfair because the parties benefit from it together while they’re together, but when they separate it gives one spouse a distinct edge over the other, especially if both didn’t come from families with similar generational wealth.

All is not lost, though. In some cases, particularly in cases where there are significant inherited funds or even trust fund accounts involved, spousal support may look different – especially in a long term marriage.

For more information, you’ll want to consult with an attorney one-on-one about your unique facts and factors involved, so that you can get specific information that will help you make the choices you need to make in the coming days and months.

Hopefully, the inheritance in question is yours, and you’ll be able to use it like a phoenix to rise from the ashes – but, if it’s not, you’ll need good advice stat. Call us at 757-425-5200.

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