If you are planning to get married, it may be a good idea to enter into a prenuptial agreement with your partner. This may make it possible to protect assets that already are or will become community property during the course of the marriage. However, what happens if you plan on receiving an inheritance at some point in the future while you are married?
Inheritances Are Generally Considered Individual Property
When you receive your inheritance, it will generally be considered separate property in the eyes of the law. Therefore, there is no need to include it in any property division proceedings that may occur in the event of a divorce. The only time that the inheritance would become community property is if the money was comingled.
How Does Money Become Comingled?
Let’s say that you receive an inheritance of $100,000 from your mom. As long as that money stays in your own bank account and is used for your own purposes, that money cannot be claimed by your spouse. However, if you put $50,000 of that money into a joint bank account or used a portion of the money to upgrade the marital residence, that money could be considered comingled.
What Happens to Funds That Are Comingled?
In the event that funds are comingled, your attorney will may go through your financial records to determine how much of that money can be linked to any joint use. If it is not possible to prove that funds were comingled, none of that money may be awarded to the other spouse. However, a judge may have the power to award a flat sum to the other spouse during a divorce. Having a prenuptial agreement may put any issues of comingling to rest by stating ahead of time how that money is to be treated in the event of a divorce.
Although you do not need a prenuptial agreement to protect an inheritance, you may want to get one just to avoid issues with potentially comingled funds. Your attorney may be able to help you draft a prenuptial agreement that holds up to legal challenges in court. If you don’t have an agreement in place before the marriage, it may be possible to come to an arrangement after the marriage with a postnuptial agreement.