Inheritances in Divorce

January 31, 2024 | By Doppelt and Forney
Inheritances in Divorce

Divorce requires that the spouses divide up all of their community assets and debts. One type of asset that spouses may have is one received as an inheritance by one or the other spouse, and disagreements are not infrequent as to what will happen with an inheritance or an asset deriving from it during a divorce.

If you are in the midst of a divorce, and you need legal advice regarding the division of a certain asset, the San Diego property division lawyers at Doppelt and Forney, APLC can assist you. We proudly advise and represent many Southern California residents in a variety of matters involving the division of assets in a divorce.

When is an Inheritance Subject to Division in a Divorce?

California is a “community property” state. As a result, the general rule is that all property acquired by a married couple during the marriage—regardless of who earned the income to pay for it—is community property, but not every item is necessarily divisible.

For example, if an inheritance can be traced back to a payment made specifically to one of the spouses, it will not be divided with the other spouse during a divorce or separation. However, the spouses are free to execute a pre-nuptial agreement or post-nuptial agreement that characterizes an inheritance or another asset differently than it would be characterized under the default rules.

While this seems clear enough at first glance, an inheritance’s character is often clouded by the inheriting spouse’s behavior over time during the marriage. A spouse can explicitly change an asset’s character through a written instrument providing for a change, which is a procedure called transmutation. In many situations, however, especially in a marriage of a relatively long duration, the money from an inheritance gets mingled with other types of funds that may originate from the spouses’ joint property or the other spouse’s assets.

For example, suppose that a wife inherits a house from her deceased parents. Even if the wife has the deed recorded in the names of both her husband and her, the deed by itself does not mean that the house has now become community property unless there is a post-nuptial agreement to support that position. In another example, putting the name of the other spouse on a joint account containing inheritance money is not sufficient to turn the inheritance into community property if it can be traced to the separate gift.

California Family Law Code Section 2640 protects the rights of spouses who have received an inheritance, as long as the value of the inheritance can be traced forensically. A CPA often can help with this process. The spouse who received the inheritance can ask for a reimbursement for its value during the property division process in the divorce, even though the inheritance money was held in a joint account. It is possible to waive the application of Section 2640 if the spouses choose to do so, but this is uncommon.

As with other types of assets, an inheritance acquired prior to the start of the marriage is not community property but instead separate property. This means that it would not be subject to division during a divorce.

Contact a Knowledgeable San Diego Attorney at Doppelt and Forney, APLC

It is easy to see how the character of an inheritance can quickly become a muddled, difficult, and contentious issue in a divorce. When a dispute arises, the case will turn on the evidence that either party can provide that supports their different characterizations.

If you need help with a property division question dealing with an inheritance—whether as the inheritor or the other spouse—the San Diego lawyers at Doppelt and Forney, APLC can help. For a free in-person or virtual consultation with a divorce lawyer, call 800.769.4748 or reach us online for a free appointment. We represent people throughout the entire San Diego metropolitan area, from Chula Vista up to Oceanside, Carlsbad, and Vista, and from La Jolla, Point Loma, Coronado, and Del Mar inland to Ramona, El Cajon, and La Mesa.