When Does an Inheritance Become Marital Property?

Date: 05/24/2022

Author: Prime Law Group

Did you know that 2.3 in every 1,000 people divorce? If you are going through a divorce, know that you are not alone and there is plenty of help.

Understanding your rights with inheritance and marital property is a question we often face. If you are wondering when does an inheritance become marital property, you’ve come to the right place.

In this article, we will discuss your options.

Keep reading to find out!

Non-Marital vs. Marital Property

In Illinois, there is a distinction between non-marital and marital property. Non-marital property is any asset acquired prior to the marriage or after the date of dissolution. Marital property, on the other hand, is an asset acquired during the marriage.

So, what does this have to do with an inheritance?

In order to answer the question of when inheritance becomes marital property, we must first look at the types of inheritance.

There are three main types of inheritance:

  • Real property
  • Personal property
  • Money


Real property is land or anything that is permanently attached to the land, such as a house or farm. Personal property is anything that is not permanently attached to the land and is mobile, such as a boat, car, furniture, or jewelry.

Money includes anything that you can convert into cash, such as stocks, bonds, and savings accounts.

In order for an inheritance to become marital property in Illinois, it must be one of the following:

  • Real property used as a marital residence
  • Personal property that both spouses use during the marriage
  • Money commingled with another marital asset

When Does an Inheritance Become Marital Property 

Any inheritance you receive is often non-marital property. However, if you use the inheritance to buy a marital home or other marital assets, the inheritance can become marital property.

For example, let’s say that you inherit $50,000 from your grandparents. You use the $50,000 to buy a new car. The car is a marital asset because you purchased the car before the divorce.

However, if you had kept the $50,000 in a savings account and never used it to purchase anything, the inheritance would remain non-marital property.

Additionally, if you and your partner were both named in the inheritance, they have a right to a portion of the inheritance.

Prenups and Postnups

If you are getting married or are already married, you may want to consider a prenuptial or postnuptial agreement.

A prenuptial agreement is a contract that is created before the marriage. The prenup outlines each spouse’s rights and obligations during the marriage and in the event of a divorce.

A postnuptial agreement is similar to a prenup, but it is created after the marriage.

If you have inherited property or assets that you want to protect in the event of a divorce, a prenup or postnup can help.

What to Know When Filing for a Divorce in Illinois

If you are considering a divorce in Illinois, there are a few things you should know.

First, Illinois is a no-fault state. This means that you do not need to prove that your spouse did anything wrong to get a divorce.

Second, Illinois has a waiting period for divorces. The waiting period is six months.

Finally, Illinois requires that you and your spouse live apart for at least six months before the divorce can be final.

How to Protect Your Inheritance Received Before Marriage

If you receive an inheritance before you get married, there are a few things you can do to protect it.

First, you should keep all the documentation, like the Will and letters from the Trustee.

Second, you should keep the inheritance in a separate account.

Third, you should not commingle the inheritance with any marital assets, like purchasing a house together or other investments, paying off debts or making any purchases meant for both you and your partner.

Additionally, you should make sure that any property purchased with the inheritance only has your name on the title. 

Finally, make sure that you keep track of your transactions of the estate or account.

How to Protect Your Inheritance Received During Marriage

While you should follow the same steps as above, there are some additional measures you should take while receiving an inheritance received during your marriage.

First, you should open an account that is in your name alone. You should also keep detailed records of all transactions made from the account.

This will help to ensure that the inheritance remains your separate property in the event of a divorce.

If you purchase any assets, make sure you have proof that the money came out of the account that has your inheritance.

It is also a good idea to keep the money in a safe deposit box or another location that only you have access to.

This will help to ensure that the money is not spent on marital expenses or used to benefit your spouse during the marriage.

Can My Ex-Spouse Claim My Inheritance After Divorce?

Generally, no. However, there are a few exceptions.

For example, if your spouse receives alimony or child support, they may be able to claim a portion of your inheritance to help pay for these expenses.

Additionally, if you use your inheritance to purchase joint property, like a house or car, your spouse may be entitled to a portion of the equity in the property.

Common-Law vs. Marriage: What's the Difference?

In Illinois, there are two types of marriage: common-law and ceremonial.

Common-law marriage is when a couple lives together for a certain period of time and holds themselves out as husband and wife.

There is no formal ceremony or license required.

A ceremonial marriage is when a couple gets married before an officiant, like a priest, rabbi, or judge, and exchange vows.

Couples must have a marriage license to get married ceremonially.

Common-law marriages are just as legally binding as ceremonial marriages.

However, couples in a common-law marriage may have a harder time proving that they are married if they do not have any documentation.

If you are in a common-law marriage and want to get divorced, you will need to prove that you meet the requirements for a common-law marriage.

This includes showing that you have lived together for a certain period of time and held yourselves out as husband and wife.

If you cannot prove that you are in a common-law marriage, the court may not grant you a divorce.

This is why it is important to keep records of your relationship, like joint bank accounts, leases, and bills.

When Does an Inheritance Become Marital Property in Common-Law?

In Illinois, an inheritance generally becomes marital property if you received it during a common-law marriage and commingled with other marital assets.

However, there are some exceptions to this rule.

If you keep the inheritance in a separate account and not commingled with other assets, it remains non-marital property.

If you are unable to prove that the inheritance is separate property, it may be considered marital property and subject to division in a divorce.

What Happens When Your Inheritance Is Marital Property?

If your inheritance is considered marital property, it will be subject to division in a divorce.

This means that the court will divide the assets between you and your spouse based on what is fair.

The court will consider several factors when making this decision, including each spouse’s financial needs, income, and earning potential.

In Illinois, you will likely receive a greater share of the marital assets if you were married for a shorter period of time, have young children, or do not earn as much money as your spouse.

How a Lawyer Can Help Protect Your Inheritance

If you are concerned about your inheritance and how it may be affected by a divorce, you should speak with a lawyer.

A lawyer can help you understand the laws in Illinois and how they may apply to your situation.

They can also help you gather evidence to prove that your inheritance is separate property.

At Prime Law Group, our team of experienced divorce lawyers can help you protect your inheritance and other assets in a divorce.

We understand the laws in Illinois and will work tirelessly to ensure that you receive a fair settlement.

Illinois Divorce Lawyers: Get Help Today

When does an inheritance become marital property? Is your inheritance at risk?

If you are going through a divorce, it is important to have an experienced lawyer on your side. At Prime Law Group, our team of Illinois divorce lawyers can help you protect your rights and interests.

Contact us today to schedule a consultation. We look forward to helping you through this difficult time.

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Let us Help you take that next step, call us today for a free consultation at Prime Law Group, LLC.

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