Is property acquired from an inheritance during the marriage considered marital property that can be divided during a divorce?

Asked almost 2 years ago - Luray, VA

The property is the home the couple has been living in since the inheritance. The inheritance was to one party.

Attorney answers (3)

  1. Mary G. Commander

    Contributor Level 16

    2

    Lawyers agree

    Answered . As long as the property was not retitled in both names, it should remain separate property. Like everything else in the law, there could be other exceptions, so you do need to have the particular circumstances reviewed by a family law attorney in your area.

    This response does not create an attorney-client relationship and is intended for general information purposes... more
  2. Jennifer E Mandell

    Contributor Level 15

    1

    Lawyer agrees

    Answered . Property received via a bequest to one spouse only addressed by Va. Code Section 20-107.3(A)(1) as follows: "Separate property is (i) all property, real and personal, acquired by either party before the marriage; (ii) all property acquired during the marriage by bequest, devise, descent, survivorship or gift from a source other than the other party; (iii) all property acquired during the marriage in exchange for or from the proceeds of sale of separate property, provided that such property acquired during the marriage is maintained as separate property; and (iv) that part of any property classified as separate pursuant to subdivision A 3."

    However, where marital money, marital earnings, or personal efforts made by either spouse during the marriage increase the value of the separate property (such as paying down the mortgage on the property, using marital income or assets to pay taxes on the property, maintenance or improvements to the property, or actively managing the property so as to increase its market value), the property becomes (transmutes to) marital property -- in whole or in part (hybrid property). Specifically, Va. Code Section 20-107.3(A)(1) goes on to provide as follows: "The increase in value of separate property during the marriage is separate property, unless marital property or the personal efforts of either party have contributed to such increases and then only to the extent of the increases in value attributable to such contributions. The personal efforts of either party must be significant and result in substantial appreciation of the separate property if any increase in value attributable thereto is to be considered marital property."

    The other way in which separate property obtained via inheritance can be transmuted to marital property is when the separate property is then titled in the name of both spouses and the court finds that the intent of this action was to gift the property to the spouse/marital estate. Specifically, where such inherited property is titled in the name of both spouse, Va. Code Section 20-107.3(A)(3)(f) provides as follows: "When separate property is retitled in the joint names of the parties, the retitled property shall be deemed transmuted to marital property. However, to the extent the property is retraceable by a preponderance of the evidence and was not a gift, the retitled property shall retain its original classification."

    I would suggest that you schedule a consultation with a local family law attorney to review the specific facts and circumstances of your case for a more appropriate individualized assessment of your case.

    This response does not create an attorney-client relationship and is intended for general information purposes only.
  3. Howard M Lewis

    Pro

    Contributor Level 20

    Answered . As long as the property was not re-titled to both spouses via a quit claim deed or other avenue then it should be separate in your state. Attorney Commander gave you an excellent answers and I suggest you contact her office, it is worth investigating the nuances to make sure you are protected. Hope things work out and take care

    Legal disclaimer: The response given is not intended to create, nor does it create an ongoing duty to respond to... more

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