Protecting Inheritance When Thinking About Divorce

Introduction

When you think about divorce, the first thing that probably comes to mind is how much it will cost you financially. While this is obviously an important consideration, you should also think about how your inheritance is affected by divorce and what steps can be taken to protect it.


“What items of property can legally constitute a marital or non-marital asset is a question of law for the court. However, whether a particular item of the property actually constitutes a marital or non-marital asset may be a question of fact for the trier of fact to determine from the evidence...”

Wright v. Wright, 277 Ga. 133, 587 S.E.2d 600 (Ga. 2003)


In some states, non-marital property does not automatically become part of marital assets when a couple of files for divorce. For example, if one spouse bought her car before she married her husband and he never put his name on it or paid for it at all (he isn't listed as an owner), that car would still be considered hers after they got divorced because she purchased it while they were unmarried; this means they could decide to sell it separately instead of dividing up everything equally between themselves like was done with other shared assets such as bank accounts or retirement plans




Marital property

Marital property is property acquired by either spouse during the marriage. It includes:

  • Property was given to one spouse by the other.

  • Property acquired by the spouses jointly, such as an antique vase that you purchased at auction together and signed a joint bid sheet for it.

  • Property purchased by the spouses during the marriage, such as a car or building.

Often times people incorrectly assume that if an asset is in their name alone that it is theirs but is not necessarily true. Payson v. Payson, 552 S.E.2d 839, 274 Ga. 231 (Ga. 2001)


Non-marital property

Non-marital property is any property you or your spouse owned before marriage and did not acquire during the marriage. It remains separate from marital property, which is anything acquired during the marriage, including debt. Our law states “the separate property of each spouse shall remain the separate property of that spouse.” OCGA §19-3-9.

Non-marital or inheritance can be protected through prenuptial agreements.





Pre-Nuptial and Post-Nuptial Agreements

A pre-nuptial agreement is an agreement made by you and your partner prior to marriage. It can include provisions for dividing property, alimony, and support in the event of divorce. The benefit of using a prenup or postnup lies in the fact that they are legally binding contracts (and only if both parties agree on all terms). Sides v. Sides, 717 S.E.2d 472, 11 FCDR 3415, 290 Ga. 68 (Ga. 2011)


A post-nuptial or antenuptial agreement is another tool that can help protect your inheritance. If you are already married and want to protect your inheritance, having a postnup drawn up will ensure that the assets and property are protected during divorce proceedings. A good lawyer should be able to help with this process if needed.Spurlin v. Spurlin., 289 Ga. 818, 716 S.E.2d 209, 11 FCDR 3026 (Ga. 2011)

If you don't have any prenuptial agreement or postnuptial agreement in place before marriage, then there will still be ways for people who care about protecting their inheritance from being taken advantage of when it comes time for divorce such as a trust.


Conclusion

When receiving an inheritance, it’s important to remember that the inheritance is not always protected from a divorcing spouse. In some cases, pre-nuptial or post-nuptial agreements can be used to protect your assets from your spouse or ex-spouse.


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