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Can I get part of spouse's future inheritance?

San Jose, CA |

I have been married for 21 years in California. My husband will inherit a considerable sum at the death of his parents. During the long marriage we ear-marked his inheritance as our retirement fund. Now that we are divorcing, I have no backup in retirement savings. At this time, we have no savings so I cannot get any lump sum at the divorce. Our incomes are approx the same so I cannot ask for alimony. He is still okay for retirement, but I am screwed. Can I stipulate in the divorce receiving any portion of his future inheritance?

Attorney Answers 5


You can if he agrees to it but inheritance is separate property and you are not legally entitled to it.

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This is a family law not probate issue. You have no legal right to his inheritance, it is his separate property. The income generated from when inheritance after he receives it may be an argument for support, but that should be addressed with your family law attorney.

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"Can I get part of spouse's future inheritance?" -- No. His inheritance, if and when he receives it, is his separate property. Until then it is a mere expectancy and has no value.

The terms of your judgment of dissolution will depend on the exact circumstances at time of settlement or trial. Since you have a long term marriage, the court will retain jurisdiction over spousal support, whether or not it awards it now.

In the future, if either of your circumstances change, you may be entitled to spousal support if it is not awarded initially. Retain a family law attorney in your area -- you need appropriate advice, counsel, and representation. Your question implies you do not have that now.

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As counsel have stated, your husband does not have the "right" to receive an inheritance, but merely the expectancy of a future potential right. This is, therefore, not an asset. Even were his parents to have died already and left him this inheritance, it would have been his separate asset, by law, unless he had hopelessly commingled it with community property.

You do have a complicated question, however, regarding spousal support. This entails a long laundry list of considerations, among which includes the marital standard of living. This could include the right to save for retirement, if that was your established habit during marriage. So it is entirely possible that your joint spending/saving habits may be relevant in Family Court, but you'd have to present it right and the facts would have to support your argument (and it would still be a hard sell, in all likelihood).

Legal disclaimer: The response given is not intended to create, nor does it create an ongoing duty to respond to questions. The response does not form an attorney-client relationship, nor is it intended to be anything other than the educated opinion of the author. It should not be relied upon as legal advice. The response given is based upon the limited facts provided by the person asking the question. To the extent additional or different facts exist, the response might possibly change. Attorney is licensed to practice law only in the State of California. Responses are based solely on California law unless stated otherwise.

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An inheritane is generally the heirs separate property. But you stated that he is ok for retirement. If he has a separate retirment account that accumulated value during the marriage then you have a CP in that retirementn account. You also need to consider spousal support matters. I suggest that you see an attorney.

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