Can I Get Part of My Spouse’s Inheritance If We Divorce?
A few years ago, your wife inherited a tidy sum from her grandpa. You have wanted to use some of that money to fix up the house, pay off debt, get a more reliable car, take a family vacation, or help pay for the kids’ school expenses. But she would never agree. hose were not your only disagreements and, as you now contemplate divorce, you wonder: should I consult a Franklin divorce lawyer about my situation (A: Yes). But, you may further wonder, am I entitled to any of my wife’s inheritance? Let’s think this through.
Short answer: probably not
As you may already know, Tennessee is an equitable division state. This means that, if divorcing spouses don’t agree on property division amongst themselves, the court will divide “marital property” in a way that it thinks is fair (“equitable”). (See Tenn. Code Ann. § 36-4-121(a)). So our first question is whether your wife’s inheritance would be considered “marital property.”
Tennessee law tells us that “marital property” is, generally, everything either of you acquired during the marriage. (See Tenn. Code § 36-4-121(b)(2)(A)). Your wife got her inheritance after she married you and you’re still married. That means she acquired it during the marriage. So far so good! The inheritance must therefore be marital property that should be equitably divided between you, right?
Well, not so fast. Tennessee law also describes a category of property called “separate property.” Separate property is not marital property — and your wife’s inheritance fits squarely in the definition of separate property. (See Tenn. Code § 36-4-121(b)(4): “‘Separate property’ means: … (D) Property acquired by a spouse at any time by gift, bequest, devise or descent”).
Definitely consult a Franklin divorce lawyer as to your specific circumstances, but, generally, a spouse’s inheritance will be considered separate property not subject to equitable distribution. Accordingly, no, you are probably not entitled to any of your wife’s inheritance.
Can an inheritance affect how the rest of your property is divided in Tennessee?
Before we abandon hope, though, let’s revisit the concept of equitable distribution. It won’t get you a piece of your wife’s inheritance, but it may get you a larger share of the marital property than you would have gotten if your wife didn’t have that separate property inheritance.
When the court makes an equitable distribution, it doesn’t necessarily split the marital property in half. Instead, the court considers various factors, including each spouses’ age, mental health, employability, debt situation, and likely future purchase power relative to the other spouse, to guide its determination of an equitable property split.
The court also considers the length of the marriage and how the divorcing spouses behaved during that marriage. For example, did one spouse pay for the other’s education? If so, the court might find it equitable to give that spouse a little more of the marital property. Did one spouse wastefully spend marital property or rack up debt against it (“dissipate assets”)? (Tenn. Code § 36-4-121(c)(5)(B)). If so, the court may find it equitable to give that spouse less of the marital property.
Other factors the court considers as it tries to balance the equities include each divorcing spouse’s economic circumstances, tax consequences they may face as a result of the equitable distribution, social security benefits, attorneys’ fees relating to the divorce, and any other unspecified factor the court deems necessary to distributing the marital property equitably. (Tenn. Code § 36-4-121(c)(8-13)).
And the court also considers how much separate property each spouse has when they divorce. (Tenn. Code § 36-4-121(c)(6)).
Let’s think about how these factors might apply to your wife’s inheritance. If your wife has her inheritance, you have no separate property, and all other things are equal, the court may decide an equitable distribution would give you a larger share of the marital property. To support an argument that a property division favorable to you is also fair, we could rely on some of the other factors, too. Remember how you wanted to use the inheritance to fix up the house (preserve marital property), pay off (marital) debt, and do other things that contributed to the marriage? What if you had used your own separate property to pay for those things? That would be another fact for the court to consider. And the court may decide it would be equitable to award you more of the marital property because of your wife’s inheritance.
As you can see, property division really depends on proper, thorough analyses of each divorcing spouse’s unique circumstances. Consult a Franklin divorce lawyer to ensure you take full advantage of what your circumstances may offer.
Commingling and transmutation of assets
Commingling may also affect whether you are entitled to part of your wife’s inheritance. Commingled assets are different types of property mixed together. In the context of marital property division, commingling has the effect of turning separate property into marital property. For example, maybe your wife put her inheritance in a joint bank account you both opened after you got married. In doing so, she mixed her separate property with marital property (the money in the joint bank account) and may have lost the ability to treat those funds as her separate property.
Transmutation has a similar effect but does not require mixing different types of property. If your wife used her inheritance to repair the family car or to pay for a family vacation, for example, the amounts she spent may be considered transmuted from separate property into marital property.
A quick note about interest when it comes to property division
Finally, even though the inheritance itself is separate property, it may generate marital property. When the value of separate property increases during the marriage, that increase is marital property if both spouses “substantially contributed to its preservation and appreciation.” (See Tenn. Code Ann. § 36-4-121(b)(2)(B)(i)).A Franklin divorce lawyer can figure out whether this substantial contribution is present.
Does this hypothetical hit home? Contact the Law Offices of Adrian H. Altshuler & Associates today to talk with an experienced family lawyer. We’re here in Franklin, Brentwood, and Columbia, Tennessee, and we are happy to help.
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