Legal Guide

Is My Inheritance Marital Property in Illinois?

Do I have to share my inheritance?  Generally, money, gifts and other property items are given to named individuals by way of a will or a trust.  This type of property is rarely given to couples to share.   Cuts down on a lot of legal confusion.  With that being said, all inheritance property, whether acquired during the marriage or not, is non-marital property. It is solely the property of the named individual. 

In Illinois, property belonging to a divorcing couple is divided into two types: marital and non-marital. “Marital property” means all property, including debts and other obligations, acquired by either spouse subsequent to the marriage.750 ILCS 5/503(a).  An exception to this rule is for all “property acquired by gift, legacy or descent.” 750 ILCS 5/503(a)(1).  As you might have presumed, an inheritance falls squarely within this exception.

While it is clear that an inheritance is non-marital property, there is chance that an inheritance can turn into marital property if the inheritance is co-mingled with marital property. In re Marriage of Mouschovias, 831 NE 2d 1222 – Ill: Appellate Court, 4th Dist. 2005.   “Co-mingling” usually happens when (1) the inheritance is deposited into an account with both parties’ names on it; (2) the refinancing of the inherited real estate with a mortgage that is in both parties’ names; (3) re-titling the inherited real estate in both parties’ names on the deed; and (4) where the other party has made significant improvements on the inherited property.

While these facts may be easy to prove, the party claiming that the property is an inheritance and non-marital property must prove that it was in fact inherited.  Any claim of the four above mentioned co-mingling examples by the other party must be disproved.  A writing, such as a last will and testament, would be extremely good evidence to prove that the property is in fact, an inheritance and non-marital property.

The judge will decide what is marital and non-marital property.  Non-marital property is kept by the spouse who has that property in his or her name or possession. “In a proceeding for dissolution of marriage or declaration of invalidity of marriage, or in a proceeding for disposition of property following dissolution of marriage by a court that lacked personal jurisdiction over the absent spouse or lacked jurisdiction to dispose of the property, the court shall assign each spouse’s non-marital property to that spouse.” 750 ILCS 503(d). 

How does an Inheritance Impact an Illinois Divorce? 

In divorce, Illinois distributes property equitably. This means that all marital property will be divided as fairly as possible.  This does not mean equally.  When one party has received a large inheritance, the other party is more likely to receive a greater percentage of the marital property.  In addition, if the inherited property affects ordered spousal maintenance, the courts will take into consideration “the income and property of each party, including marital property apportioned and non-marital property assigned to the party seeking maintenance, as well as all financial obligations imposed on the parties as a result of the dissolution of marriage.” 750 ILCS 504(a)(1).   The court strives to be as fair as possible.

What If I Receive a Gift During My Marriage?

Simple.  All gifts are deemed non-marital.  Even if the parents gift an early advance on the planned inheritance while they are still alive. 

Gifts and marriage can get complicated in Illinois.  It’s important to understand what is marital property and what is not.  The law is rarely clear and the facts are usually vague or complicated.  So, it’s best to consult with an expert attorney.

If you have questions as to how an inheritance will impact your divorce, please contact a Chicago, Illinois family lawyer to speak with an experienced divorce lawyer today.

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