Will an Inheritance Remain Your Separate Property in a Divorce?

 Posted on June 17, 2025 in Divorce

One of the biggest issues in a divorce is often the division of marital assets. The manner in which those assets are divided will depend on whether the individual state is a community property state or an equitable distribution state. There are only nine community property states that divide marital assets exactly 50/50. Equitable distribution states, like Illinois, divide marital assets fairly but not necessarily equally.

One or both spouses may also have separate or non-marital assets that could come into question. While an inheritance, whether received before the marriage or after, is usually considered non-marital property, there are instances where part or all of the inheritance may be subject to division as a marital asset. If you have questions regarding whether an inheritance will be considered marital property, it is important to speak to a Wheaton, IL family law attorney.

When Can an Inheritance Become Marital Property?

An inheritance can be in the form of money, real estate, or any other type of real property. An inheritance given to one spouse remains that spouse’s separate, non-marital property unless certain actions change that status. For example, if one spouse received a beach house from great-aunt Ida prior to the marriage or during the marriage, that house is considered non-marital property.

However, if the spouse who received the house adds the other spouse to the deed, the house immediately becomes a marital asset. There are other ways that at least a portion of the house can be considered a marital asset, such as:

• Marital funds are used to pay the yearly insurance and taxes on the house.
• The home needs repairs, and marital funds are used to make those repairs.
• The other spouse works on the house extensively during the marriage.
• The home appreciates substantially during the marriage.

In these situations, at least a portion of the home’s value may be considered a marital asset to be divided fairly. If the home was worth $150,000 when one spouse received it as an inheritance, but 25 years later, the home is worth $600,000 (assuming no marital funds were used for repairs or other expenses), then the $450,000 in appreciation may be partially or fully subject to being split as a marital asset.  

Inheritances of money are similar. Suppose one spouse receives $50,000 as an inheritance during the marriage and places that money in a joint bank account; the money immediately becomes a marital asset. If the inheritance is used to buy a fancy vehicle that is titled only in the inheriting spouse’s name, the vehicle remains a separate asset. If both spouses’ names are placed on the vehicle title, it becomes a marital asset.

How to Ensure Separate, Non-Marital Assets Remain Separate

Perhaps the best way to ensure that non-marital assets remain separate is to have a pre-nuptial or post-nuptial agreement that clearly spells out that the inheritance or gift will remain the sole and separate property of the spouse to whom it was given. Do not commingle a cash inheritance with marital money, and do not pay any expenses for a home that was given as an inheritance out of marital funds. Always keep a comprehensive paper trail for inheritances and gifts that are to remain separate.

Contact a Kane County, IL Marital Asset Division Lawyer

If you have questions regarding separate and marital assets, a highly skilled Geneva, IL marital asset division attorney from McSwain Rapp Law, LLC can help. As a client-focused law firm, we work efficiently to bring real value to each case while achieving the most desirable outcome. Call 630-581-2877 to schedule your free consultation.