A family member passed away, but left you property as part of your inheritance.
And while it was always “understood” during your marriage that the property was meant for you, you are concerned that your spouse might want a piece of the property now that divorce is on the horizon.
Whether you have inherited farm land, a second home, or pine trees, a divorce court will follow the same analysis in determining whether you will keep your inherited property during a divorce.
The court will want to figure out:
Is the property marital in nature or is it really yours and yours alone (non-marital)?
If the property is non-marital, then does your spouse have any sort of fairness or equitable claim based on her contributions to the property during the marriage?
Is regular and recurring income derived from the property that increases your income level (for purposes of alimony and child support)?
In Florida divorces, marital property is fairly divided between the parties. Non-marital property is given solely to the single owner, and does not affect the fair division of the other properties.
If the property is marital, you will still very likely “keep” possession of the property, but you will have to buy out your spouse for fair value. If the property is non-marital, not only do you keep possession of the property but also you do not have to buy out your spouse, as the property is yours and yours alone.
If the property is non-marital, does your spouse have a “fairness” claim? If you did upkeep on your non-marital property with marital money during the marriage, it wouldn’t be fair to the spouse if we did not recognize her contribution to the property.
On the flip side, marital contributions to upkeep should not be enough to change the nature of the property from marital to non-marital.
A “middle ground” is to recognize that the enhancement of the value of the property due to the upkeep from marital money is a “marital asset”, or “marital interest”, in and of itself.
So with that background, here is we suggest our clients do to protect their non-marital property from claims against their spouse during a divorce:
KEEP SEPARATE ACCOUNTS
Keep. It. Separate.
In Florida, yourintent with the property is important.
If it looks like you intended to share the property with your spouse, then the court may very well find the property marital, and give your spouse a share.
We call this co-mingling of the assets.
Keep all accounts that relate to the property separate.
Don’t Pay Debt Associated With the Inheritance With Marital Money
Along the same vein, don’t pay any debt associated with the inherited property with marital money.
This debt can be a mortgage, real estate taxes, insurance, or investments into the property to increase its value.
After all, if you are pushing marital money into your asset, it would only be fair for your spouse to obtain some of the benefits.
Rather, utilize non-marital sources of money to pay down debt associated with your inherited property to protect it from a claim from your spouse.
CONSIDER A POST-NUPTIAL AGREEMENT
Florida is a contract state. Outside of a few notable exceptions, a post-nuptial agreement is a contract that can delineate and protect your inheritance from your spouse.
Consult with a law firm that handles post-nuptial agreements to discuss using a contract during your marriage to protect your inherited property should you and your spouse divorce in the future.
GATHER GIFT AND ESTATE TAX RETURNS TO PROVIDE EVIDENCE THAT YOUR INHERITANCE IS MEANT ONLY FOR YOU
If the inheritance has transferred to you, the estate of the family member who left it to you will have filed an estate or gift tax return. Get the tax return, as it will show that the intent is that the inherited property be yours.
If needed, your lawyer can subpoena these gift tax returns during your case.