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If you have divorce questions

Can My Spouse Take My Inheritance During a Divorce?

The brief answer to this question is: Not generally. But, as with every other question regarding Georgia’s domestic relations laws, a complete answer to this question depends largely on the facts of the specific divorce case. According to Georgia case law on this subject, property acquired during the marriage by either spouse by inheritance, bequest or devise remains the separate property of the spouse that acquired it, and is thus not subject to equitable division upon divorce. Bailey v. Bailey, 250 Ga. 15 (1982). In other words, under normal circumstances, if a spouse receives an inheritance during a marriage, the money or property received receives the separate property of that spouse, and the other spouse has no claim to it in the event of divorce.

However, there are two circumstances under which inherited property may be viewed as marital property and thus be subject to division upon divorce:

1) If that property appreciates in value during the marriage, and that appreciation in value is caused by the efforts of the other spouse, the appreciated value may be subject to equitable division. See Halpern v. Halpern, 256 Ga. 636 (1987).

2) Inheritances may also be viewed by the court as marital property if those funds are commingled with other marital assets. For example, if inherited funds are deposited in a joint marital bank account or invested in a joint investment account with other marital funds.

With this being said, if you are concerned about ensuring that an anticipated inheritance or an inheritance that you have already received remains your separate property in the event of divorce, consider entering into a prenuptial or postnuptial agreement to clarify and determine this issue before it poses a potential problem during divorce. If entering into a prenuptial or postnuptial agreement is not possible or desirable, keeping any inherited property or money separate from your marital property, such as keeping it in a separate bank account, location or a trust may help protect your inheritance from being taken by your spouse during divorce.

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