This article discusses inheritance and divorce in Florida. A common question divorce lawyers receive is whether an inheritance received by a spouse is considered in the divorce to be a marital asset to be divided. Married couples very rarely receive an inheritance jointly. A spouse will typically receive an inheritance individually – such as a parent leaving a home or money to a son or daughter.
Marital Property vs. Non-Marital Property in Florida
Florida law states that “the court shall set apart to each spouse that spouse’s nonmarital assets and liabilities.” Marital assets will be divided equally pursuant to Florida Statutes Section 61.075.
Then, if an asset is non-marital, whoever has that asset in their name or possession gets to retain that asset after the dissolution of marriage without distributing it. If an asset is marital, on the other hand, the value of that asset will be divided equally in a divorce.
Is Inheritance Marital or Non-marital?
According to Florida law, “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.” Florida Statutes Section 61.075(6).
Any inheritance is a non-marital asset and will not be divided in a Florida divorce, if it is not commingled or gifted to a spouse as discussed below. This is true even if a spouse sells the asset acquired through inheritance and it is sold and something new purchased. For example, if a wife received a home through an inheritance and sold it for another home in another state, the new home will also be a non-marital asset and not divided in a divorce.
Establishing that an Asset is Inherited in a Divorce
A spouse is required to provide evidence in court that an asset is inherited and therefore non-marital. According to Florida law:
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 non-marital assets and liabilities.” Florida Statutes Section 61.075(a). This requires a clear showing of the finances and records proving that the property in question came straightforwardly and wholly from the inheritance to the spouse.
Alimony and Inheritance under Florida Law
There is no set formula for alimony in a Florida divorce. A Florida Divorce Court will first make a factual determination as to whether a wife or husband has an actual need for alimony and whether the other party has the ability to pay alimony. Florida Statutes Section 61.08.
In answering the two questions regarding alimony Florida divorce judges may consider “The financial resources of each party, including the non-marital and the marital assets and liabilities distributed to each party.” Florida Statutes Section 61.08(d). Therefore, an inheritance may cause a spouse to be capable of paying alimony despite the inheritance being non-marital.
Inheritance Converting to Marital Property
Inherited property can convert from non-marital property to marital property if the inherited property is given to the other spouse, or if the property is put into a joint account or property with the spouse and commingled.
There are two opposing rules operating in this scenario. First, that inherited property is non-marital and 2) interspousal gifts become marital property. When considering with these two competing rules, according to case law, the trial judge in a divorce must determine if the recipient of the alimony intended that the inherited assets remain non-marital or whether the recipient’s actions give rise to the presumption that the inheritance is a gift to the other spouse.