What Happens to Inherited Property During a Virginia Divorce?

In general, Virginia law states that inheritances count as "separate property," meaning that they are the property of the spouse who received it.

Divorces can be complex affairs, and many divorcing spouses end up worrying about how the court will divide their property and assets.

This is especially true for individuals who possess certain inherited property such as real estate, heirlooms, or sentimental items.

In general, Virginia law states that inheritances count as “separate property,” meaning that they are the exclusive property of the spouse who received it.

However, this is not always the case.

Especially in cases where the inherited property has become a part of your daily life (such as if you moved into an inherited house with your spouse), it’s often wise to speak to an attorney about the property before you discuss property division with your spouse.

In this article we’ll discuss the basics of this process.

However, if you believe that your spouse will contest your ownership of a piece of inherited property you should immediately discuss your case with an attorney.

Property Division in Virginia: The Basics

divided house - divorce concept represented in broken felt house.

In Virginia, all divorcing couples must go through the equitable distribution process, during which they will fairly divide up any shared, marital property and debt.

The emphasis on the final point is important, as Virginia law only requires the division of any property (or debt) that is jointly owned by the spouses.

Specifically, the Virginia Code defines three different types of property that can be relevant to a divorce case:

  • Separate Property – All property acquired by a spouse before the marriage, through an inheritance or gift, through proceeds from the sale of otherwise separate property, etc.
  • Marital Property – All property titled in the names of both spouses, all property acquired by each party during the marriage which is not separate property, all retirement accounts and pensions acquired during the marriage, etc.
  • Mixed Property – Property that can be defined as part separate and part marital in nature, such as if otherwise separate property is commingled with marital property. An example would be if you inherited a large sum of money and then placed that sum in a marital bank account that you use to pay bills.

Note, however, that an equitable distribution does not necessarily mean an equal distribution.

While 50/50 splits are common, it’s not unusual for the facts of a divorce to lead to a 60/40 or even a 70/30 split.

Two Quick Examples

For example, if the couple used marital funds to purchase a new car, that car must be included in the equitable distribution process.

This could take the shape of one spouse buying out the other spouse’s interest in the car or of one spouse trading their interest in the car for the ownership of a different, comparable item (i.e. “one spouse gets the car and the other gets the fishing boat”).

As another, more relevant example, let’s say that one spouse owns property that could be categorized as separate under Virginia law, such as an inherited piece of undeveloped real estate in the middle of the woods.

As noted in the Virginia Code:

“Separate Property is (i) all property, real and personal, acquired by either party before the marriage; [and] (ii) all property acquired during the marriage by bequest, devise, descent, survivorship or gift from a source other than the other party…”

Virginia Code § 20-107.3

Since inherited property (“acquired by descent”) is specifically defined as separate property, this little plot of undeveloped land would likely not be a part of the equitable distribution process.

However, depending on what you do with and on this property, it (or a portion of it) may become marital property, and thus susceptible to equitable distribution, over time.

Inherited Property: Why You Should Be Careful with Your Separate Property and Assets

inheritance concept dividing up property during a divorce depicted with toys.

In this fashion, the true core issue at work here is whether or not your spouse has a claim to your otherwise separate inherited property and, if so, to what degree they can claim ownership.

When it comes time to whether an inheritance is susceptible to division during a divorce the most important factor to consider is whether or not the property is still separate in nature.

Put another way, if you ask an attorney “what will happen to my inherited property during a Virginia divorce” they will likely answer “well, what have you done with it since you got it?”

Inherited Property as Mixed Property

As we noted above, otherwise separate inherited property can become “mixed” in nature in cases where one spouse commingles an inheritance with their marital property.

For example, if you inherit $10,000 and place it in a separate bank account that your spouse doesn’t have access to, that money will likely remain separate in nature, meaning you won’t have to divide it up during your divorce.

However, if you place that $10,000 into a joint checking account with your spouse and use it to pay marital bills (mortgage, car payments, etc.), a judge may determine that at least a portion of that money is marital in nature when it comes time to divide up your assets.

Similarly, if you inherited a home and your spouse spent a considerable amount of time, effort, and marital funds to improve this home, they may be entitled to a portion of the value of that home due to the “personal effort” language that permeates Virginia’s equitable distribution laws.

As you can see from the slightly wishy-washy language in these two examples, however, the laws surrounding mixed property are incredibly complex and fact-specific.

For this reason, it’s wise to discuss any and all inherited property with your divorce attorney before you file for divorce, as only an attorney who has reviewed all of the facts of yoru case can give you an accurate summary of what may happen to this property during the equitable distribution process.

Conclusion

house concept - blueprint house depicted in real life.

Generally speaking, it’s always wise to at least consult with an attorney before you file for divorce.

However, individuals who feel that their divorce may put their inherited property at risk should most definitely speak with an attorney as soon as possible.

Divorce law is already complex, and disputes about inherited property will only further complicate this issue.

Only an experienced family law attorney who has reviewed your entire case can give you the advice you need to safely navigate the equitable distribution process.

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