Oftentimes, potential clients come to us when their parents are in ill health or they are possibly in line to receive inheritance assets in the form of a home, business interest, or property from a close relative. They have heard rumors from their friends, family, and the Internet that once their inheritance is received that they will automatically be required to provide one half of the assets to their spouse simply because they are married. Nothing could be further from the truth.
Under Florida law, any inheritance you receive in your sole name when married would be classified as a non-marital asset. A non-marital asset is one that is not subject to equitable distribution with your spouse in a dissolution of marriage action unless it has been commingled with marital assets.
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This means that the simplest way to protect your inheritance asset is simply to put it into an account in your own name and do not commingle the funds with marital assets or use them for a marital purpose. If the inheritance funds are placed into a joint account with your spouse, or used to improve property such as a marital residence that you own jointly with your spouse, the Court as a general rule will find that the funds that were placed into the joint account or used to improve marital property was a gift to the marriage and therefore subject to equitable distribution.
Many people make the mistake of placing their non-marital inheritance assets into their separate name which protects the assets, but then are talked into placing their spouse’s name on the non-marital account so that it passes to the spouse, “just in case something happens to you.” Don’t be pressured into placing your spouse’s name onto the inheritance account as a joint owner. Naming a spouse in your will as the beneficiary of your estate will protect the spouse, “just in case something happens to you.” Placing the spouse’s name on your non-marital inheritance account will insure that something will happen to you — you will lose half of the account in any subsequent divorce.
The information provided here is the general rule of law in Florida, but a good attorney can always make an argument or file a claim on behalf of your spouse to your non-marital assets. The key is whether they will win that claim. Don’t take action that may come back to hurt you in the future without the benefit of a lawyer’s counsel. Knowledge is power. If you have a question about how best to protect an inheritance or any other non-marital asset call the attorneys of Morgan & Barbary. It is better to ask the question early and get the right answer that protects your asset, than wait until the claim is at hand and find out your guess was wrong.