A married couple will rarely receive an inheritance together. More typically, one spouse will receive an inheritance via a bequest individually, i.e. “to my loving daughter” What happens to this inherited property after a Florida divorce?
Marital Property vs. Non-Marital Property in Florida
The Florida statutes outline that “the court shall set apart to each spouse that spouse’s nonmarital assets and liabilities” and that for marital assets “the distribution should be equal” Fla. Stat. Sec 61.075
So, if an asset is non-marital, whoever has that asset in their name or possession gets to keep that asset after the divorce without dividing it. If an asset is marital, that asset’s value will be split 50/50 in the divorce.
So, what kind of asset is an inheritance in a Florida divorce?
“Nonmarital assets and liabilities” include: Assets acquired separately by either party by noninterspousal gift, bequest, devise, or descent, and assets acquired in exchange for such assets;” Fla. Stat. Sec. 61.075(6)(a)(4)(b)
Any inheritance is a non-marital asset and can therefore will not be divided in a Florida divorce. What’s more, if you sell that inherited asset and buy something new with the proceeds from the sale, the new purchase will remain a non-marital asset.
Proving an asset is inherited in a Florida divorce
You’re going to have to prove that the asset was inherited.
“All assets acquired and liabilities incurred by either spouse subsequent to the date of the marriage and not specifically established as nonmarital assets or liabilities are presumed to be marital assets and liabilities. Such presumption is overcome by a showing that the assets and liabilities are nonmarital assets and liabilities.” Fla. Stat. Sec. 61.075(a)
This requires a clear showing of your finances proving that the property in question came directly and exclusively from the inheritance.
Inheritance and alimony in a Florida divorce
To determine alimony in a Florida divorce “the court shall first make a specific factual determination as to whether either party has an actual need for alimony or maintenance and whether either party has the ability to pay alimony or maintenance” Fla. Stat. Sec. 61.08
There’s a two-part test to determine alimony: 1) Does a person need alimony and 2) Can the other person pay alimony.
In answering those two questions the Florida courts may consider “The financial resources of each party, including the nonmarital and the marital assets and liabilities distributed to each.” Fla. Stat. Sec. 61.08(d)
So, an inheritance can cause a person to be capable of paying alimony even though the inheritance is non-marital property in Florida.
There is a way around inheritance being used for alimony. If you do not change your lifestyle or get divorced immediately after receiving the inheritance, the courts will apply the previous standard of living in determining that spouse’s need for alimony. Goodman v. Goodman, 797 So. 2d 1282 – Fla: Dist. Court of Appeals, 4th Dist. 2001
Can An Inheritance Become Marital Property?
Inherited property can transform from non-marital property to marital property if the property is given to the other spouse or if the property is put into a joint account or property with the spouse.
There are two competing rules operating in this scenario. 1) Inherited property is non-marital and 2) interspousal gifts become marital property.
When dealing with these two competing rules, “It is the task for the trial court in a dissolution proceeding to determine whether the recipient intended that the assets remain non-marital or whether the recipient’s conduct during the marriage gives rise to the presumption of a gift to the other spouse.” Lakin v. Lakin, 901 So. 2d 186, Fla. Dist Court of Appeals.
This typically boils down to whether the inherited money got deposited in an account that had non-marital assets. First, it’s tough to determine what is the inherited money and what isn’t inherited money after commingling. Second, the other spouse presumably has access to all of the money in the joint account as if it was all theirs…and it is essentially like a gift to the marriage.
What If I Receive My Inheritance In Advance?
Often parents or grandparents will give a child or grandchild their inheritance in advance, especially if they’re going through a hard time in their lives.
This early inheritance property is treated as non-marital because it is a gift. Non-marital assets are “Assets acquired separately by either party by noninterspousal gift” Fla. Stat. Sec. Fla. Stat. Sec. 61.075(6)(a)(4)(b)