How is inheritance handled in a divorce?
The general rule of thumb in divorces is that all property accrued during the marriage is subject to division by the Court. The Court has very broad discretion in dividing this marital property. There are major exceptions to the marital property rule which take certain categories of property directly outside of the division analysis, including property acquired by gift or excluded by valid written agreement of the parties (e.g., a pre-nuptial agreement). Section 452.330, RSMo.
One of the most frequently litigated areas in this area is inheritance. Under Missouri law, property acquired by “bequest, devise or descent” is separate property not subject to a division. Section 452.330.2(1), RSMo. Again, the presumption is that when property is acquired during the marriage it is marital property subject to division by a Court. However, when you claim a property is exempt as separate property, you must prove that an exemption applies by clear and convincing evidence. King v. King, 66 S.W.3d 28, 36 (Mo. Ct. App. 2001). Practically, in the context of inheritance, it is necessary to obtain certified documents from all possible sources to trace the inheritance to your possession (e.g., documents from the trust, will, probate and trace them to your bank account or possession). Supplemental testimony is also helpful.
Assuming you can meet this burden, that does not mean the property is always exempt and separate. Separate property can be turned into marital property if it is commingled with marital assets and earnings or jointly titled in both spouses’ names. See Cuda v. Cuda, 906 S.W.2d 757, 759 (Mo. Ct. App. 1995) (where the parties continually commingle marital assets and earnings, and treat property as communal, separate property may be transmuted into marital property). It is absolutely necessary to keep the property separate so it legally remains separate property.
We’ve handled many cases involving inheritance ranging from a spouse inheriting $5,000 to a spouse inheriting $1,000,000+. Contact for assistance.