The death of a loved one can be devastating. However, there may be a silver lining if the deceased left a substantial inheritance to you. When it comes to divorce and inheritance in Virginia, in general, an inheritance is considered to be separate property. This means that should a person divorce, their inheritance will go to them and will not be subject to the division of marital property. However, an inheritance may be considered marital property subject to division if it has comingled with marital assets or has been used for marital purposes.
Comingling occurs when separate assets are blended with marital assets to the point where it is no longer possible to recognize what is separate and what is marital. When this happens, all the assets at issue will be considered marital assets, and thus, will be included in the divisible estate. For example, if an inheritance is placed in a joint bank account and the couple uses the inheritance to pay for joint marital expenses, such as upgrading the family home, the inheritance may lose its status as separate property.
Comingling can even occur if a person had obtained the inheritance prior to getting married. While generally inheritances obtained before a person is married will be considered separate property, again, if the inheritance is comingled with marital assets, the inheritance will become marital property.
As this shows, if a person wishes to keep an inheritance as separate property, he or she should make sure not to comingle it with marital funds or use it to pay for joint marital expenses. If this happens, the inheritance will have comingled with marital funds and will no longer be considered separate property.
Since this can be a sticking point in a divorce, with one spouse wanting to treat the inheritance as a marital asset while the other spouse wanting to treat the inheritance as a separate asset, it is important that each party understands the laws of property division in Virginia, so they can make informed choices. This not only protects themselves put their rights as well.