Is My Soon To Be Ex Entitled To Half My Inheritance?

DATE: 02/08/2019

POSTED BY: Kris Dunn

In Florida, if a spouse is the sole recipient of an inheritance in the form of money or property, either before or during the marriage, the inherited asset is nonmarital and not subject to the equitable division of property in a divorce. However, there are circumstances that can cause all or part of an inheritance to transition into a marital asset that is subject to division during a divorce.

NONMARITAL INHERITED FUNDS

A common issue in divorce arises when the owner of nonmarital money deposits the funds in the same bank account as marital funds. The nonmarital funds could have been directly inherited or, if an inheritance was in the form of real estate or personal property, if the owner sold the inherited property, the money received in the sale remains nonmarital since it was acquired in exchange for a nonmarital inheritance.

The question becomes whether in this situation, the spouse who separately owns the inherited money intends to share it as a gift to his or her spouse during the marriage. If so, the money becomes a marital asset and is therefore subject to division in divorce.

If the nonmarital, inherited money is kept in a separate account and no marital money is deposited there, it shows evidence of intention to keep the money nonmarital. However, if marital funds are also deposited there and marital and nonmarital money is comingled, Florida cases have held that this creates a presumption that the owner of the inheritance intended to gift half of the inherited funds to the other spouse.

At this point, the spouse who inherited the money has the burden to argue the presumption by showing evidence that he or she did not intend to gift half of the inheritance to the other spouse.

OTHER SITUATIONS

When an asset inherited by one spouse has its value enhanced because of the effort of either spouse during marriage, or because marital funds were spent to do so, the appreciation in value of the nonmarital asset becomes marital. This appreciation value, not the entire value, then becomes subject to equitable division in the case of a divorce.

For example, if marital funds such as wages earned during marriage are used to repair or improve an inherited building owned by one spouse, in divorce, the cour may find that the resulting increase in value to the building may be a marital asset subject to equitable division.

Similarly, if one spouse separately owns a piece of furniture that he or she inherited, but one of them during the marriage refinishes and/or repairs the item, increasing its value, the added value would become a marital asset.

BOTTOM LINE

Even if an inherited asset appears to have remained separate during the course of the marriage, nonmarital property can be a complex legal and factual issue in a Florida divorce. It is always in your best interest to speak to a lawyer with questions about inheritance and divorce. The earlier in the relationship a person seeks legal advice, the better. For example, the parties may decide to sign a prenuptial agreement before marriage in which they agree an inherited asset will remain nonmarital under any scenario.

As unfortunate as the circumstances may be, often times we find clients facing this exact problem. While your situation is always unique to your individual case, it is important to contact an experienced attorney regarding any legal questions that may transpire. Please do not hesitate to contact our law office of Dunn & Miller, P.A. today.

Your Marital Home May Not Be Sacred During Divorce

Date: 02/04/2019

Posted By: Kris Dunn

In family law cases, the firm of Dunn & Miller, P.A. recognizes that this is probably one of the most emotional events of one’s life. The possibility that one might have to move from their home is a distinct and intimidating one. The phrase “You can’t buy happiness,” may or not be true, but the old adage that more money allows one to suffer less is also true. The marital home is one of your family’s biggest investment, but when the possibility of divorce comes along… it still is an asset and may be subject to division. It’s a tough hurdle to leap because it represents both a financial and emotional decision. But it’s one that has to be made, however. Here are some options to consider:

  1. Sell the house immediately. This is the best option if both spouses are ready to leave the home or if neither party can afford the mortgage, taxes, and upkeep on one income. Use a neutral real estate agent, meaning one who has no pre-existing ties to either spouse.
  2. Buy out the other party, refinance the mortgage and have the ex-spouse removed from the deed. This requires having the property appraised to measure the property value. Deduct all outstanding loan costs, then subtract the costs and fees associated with the transfer of property from the market value. Split the remainder in half, and that’s the number to begin your negotiations with your ex.
  3. Surrender your interest in half of the house without receiving any compensation. This could be attractive if the one spouse can afford all the payments, and there is little to no equity in the property. Make sure to have all transfer documents legally executed, so the spouse who moves out can’t claim an interest in the property later on.
  4. Think about birdnesting. That ’s where couples acquire a second place to live – think small apartment – and each person rotates between the house and the apartment. This is beneficial if you have children you don’t want to disrupt. The kids stay in the house on a full-time basis. It’s the parents who shuttle in and out.
  5. Agree on a time to sell in the future and decide who will live in the home and how to share costs. This puts off making a decision about selling and allows you to wait until the kids are older or until you build more equity in your home.

While all of these options should be up for consideration by both parties, it is critical to avoid making any legally binding decisions before consulting with an attorney. At Dunn and Miller, P.A. we will review with you all potential options and help determine what route you should take in order to benefit you and your children.

Is My Soon To Be Ex Entitled to Half of My Inheritance?

In Florida, if a spouse is the sole recipient of an inheritance in the form of money or property, either before or during the marriage, the inherited asset is nonmarital and not subject to the equitable division of property in a divorce. However, there are circumstances that can cause all or part of an inheritance to transition into a marital asset that is subject to division during a divorce.

NONMARITAL INHERITED FUNDS

A common issue in divorce arises when the owner of nonmarital money deposits the funds in the same bank account as marital funds. The nonmarital funds could have been directly inherited or, if an inheritance was in the form of real estate or personal property, if the owner sold the inherited property, the money received in the sale remains nonmarital since it was acquired in exchange for a nonmarital inheritance.

The question becomes whether in this situation, the spouse who separately owns the inherited money intends to share it as a gift to his or her spouse during the marriage. If so, the money becomes a marital asset and is therefore subject to division in divorce.

If the nonmarital, inherited money is kept in a separate account and no marital money is deposited there, it shows evidence of intention to keep the money nonmarital. However, if marital funds are also deposited there and marital and nonmarital money is comingled, Florida cases have held that this creates a presumption that the owner of the inheritance intended to gift half of the inherited funds to the other spouse.

At this point, the spouse who inherited the money has the burden to argue the presumption by showing evidence that he or she did not intend to gift half of the inheritance to the other spouse.

OTHER SITUATIONS

When an asset inherited by one spouse has its value enhanced because of the effort of either spouse during marriage, or because marital funds were spent to do so, the appreciation in value of the nonmarital asset becomes marital. This appreciation value, not the entire value, then becomes subject to equitable division in the case of a divorce.

For example, if marital funds such as wages earned during marriage are used to repair or improve an inherited building owned by one spouse, in divorce, the cour may find that the resulting increase in value to the building may be a marital asset subject to equitable division.

Similarly, if one spouse separately owns a piece of furniture that he or she inherited, but one of them during the marriage refinishes and/or repairs the item, increasing its value, the added value would become a marital asset.

BOTTOM LINE

Even if an inherited asset appears to have remained separate during the course of the marriage, nonmarital property can be a complex legal and factual issue in a Florida divorce. It is always in your best interest to speak to a lawyer with questions about inheritance and divorce. The earlier in the relationship a person seeks legal advice, the better. For example, the parties may decide to sign a prenuptial agreement before marriage in which they agree an inherited asset will remain nonmarital under any scenario.

As unfortunate as the circumstances may be, often times we find clients facing this exact problem. While your situation is always unique to your individual case, it is important to contact an experienced attorney regarding any legal questions that may transpire. Please do not hesitate to contact our law office of Dunn & Miller, P.A. today.

Your Marital Home May Not Be Sacred During Divorce

In family law cases, the firm of Dunn & Miller, P.A. recognizes that this is probably one of the most emotional events of one’s life. The possibility that one might have to move from their home is a distinct possibility. The phrase “You can’t buy happiness,” may or not be true, but the old adage that more money allows one to suffer less is also true. The marital home is one of your family’s biggest investment, but when the possibility of divorce comes along… it still is an asset and may be subject to division. It’s a tough hurdle to leap because it represents both a financial and emotional decision. But it’s one that has to be made, however. Here are some options to consider:

  1. Sell the house immediately. This is the best option if both spouses are ready to leave the home or if neither party can afford the mortgage, taxes and upkeep on one income. Use a neutral real estate agent, meaning one who has no pre-existing ties to either spouse.
  2. Buy out the other party, refinance the mortgage and have the ex-spouse removed from the deed. This requires having the property appraised to measure the property value. Deduct all outstanding loan costs, then subtract the costs and fees associated with the transfer of property from the market value. Split the remainder in half, and that’s the number to begin your negotiations with your ex.
  3. Surrender your interest in half of the house without receiving any compensation. This could be attractive if the one spouse can afford all the payments, and there is little to no equity in the property. Make sure to have all transfer documents legally executed, so the spouse who moves out can’t claim an interest in the property later on.
  4. Think about birdnesting. That’s where couples acquire a second place to live – think small apartment – and each person rotates between the house and the apartment. This is beneficial if you have children you don’t want to disrupt. The kids stay in the house on a full-time basis. It’s the parents who shuttle in and out.
  5. Agree on a time to sell in the future and decide who will live in the home and how to share costs. This puts off making a decision about selling and allows you to wait until the kids are older or until you build more equity in your home.