There are two types of jurisdictions when it comes to divorce: community property jurisdictions and equitable distribution jurisdictions. In community property jurisdictions, divorce courts divide property into two categories: separate property and community property. Separate property is specific types of property owned by an individual before marriage and other types of property including inheritances. Even in equitable distribution jurisdictions, most courts consider inheritance — whether received before or during marriage — as the separate property of the spouse who received it.
Community Property Jurisdictions
A minority of states are community property states for purposes of divorce. The following states are community property states: Texas, Washington, Arizona, New Mexico, California, Louisiana, Idaho, Nevada and Wisconsin. In these states, any property deemed separate is not subject to division during divorce. Separate property includes inheritance proceeds and other types of property owned by one spouse prior to marriage. If you live in one of these states, it's highly unlikely a court will award your inheritance to your spouse, even if you received it while you were married.
Equitable Distribution Jurisdictions
The majority of states are equitable distribution jurisdictions. These states approach the division of property during divorce differently than community property jurisdictions. In community property states, each spouse is entitled to one-half of all property amassed during marriage. It's important to note that equitable distribution does not mean "equal distribution." What this means is that one spouse might receive more than the other; the court splits property 50/50, 70/30 or 60/40, depending on what it considers just and/or fair. In these jurisdictions, marital property and separate property are distinguished; however, it's not unusual for courts to award one spouse a portion of a spouse's inheritance, if the court deems it just.
In community property states, inheritance is categorized as separate property. As such, it is not subject to division during divorce. In equitable distribution states, inheritance is often categorized as separate property. However, these states sometimes give another spouse's inheritance to the other spouse during divorce; it all depends on the court and the individual circumstances. Inheritance is usually categorized as separate because courts consider it important to honor the wishes of the deceased person who bequeathed it.
Sometimes, one spouse's inheritance is subject to division. When one spouse commingles the proceeds from an inheritance with marital assets, to the extent that it's difficult for a court to discern which funds are separate and which funds are community, some inheritance proceeds might be divided among both spouses. It's important to consult with a divorce attorney who can advise you as to the laws regarding division of property in your state.
- The Free Dictionary: Community Property
- Divorcenet.com: Definition of Equitable Distribution
- Law Office of J. Douglas Barics; New York Equitable Distribution; J. Douglas Barics; July 2011
- Divorcenet.com: Tennessee Property Division Frequently Asked Questions FAQs
- California Courts. "Property and Debt in a Divorce or Legal Separation." Accessed Sept. 14, 2020.
- Texas Statutes. "Family Code, Title 1, Subtitle B, Chapter 3, Subchapter A: General Rules for Separate and Community Property." Accessed Sept. 14, 2020.
- Internal Revenue Service. "Part 25, Chapter 18, Section 1: Basic Principles of Community Property Law." Accessed Sept. 14, 2020.
- Alaska Court System. "Property & Debt for Married Couples." Accessed Sept. 14, 2020.
- Internal Revenue Service. "Publication 555 (03/2020), Community Property." Accessed Sept. 14, 2020.
Ellis Roanhorse has been writing professionally since 2007. His work has been published in the "Loyola Law Review," "The Portland Mercury" and "Carillon Magazine." Roanhorse holds a Master of Arts in political science from the University of Chicago and a Juris Doctor from the Loyola Marymount School of Law.