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When couples go through a divorce in Illinois, the division of assets often becomes one of the most contested issues. Many people assume that everything accumulated during the marriage will be split evenly, but that’s not always the case, especially when it comes to inherited property. Other people assume that inherited property is never subject to division in a divorce, without the proper planning, this too is not always the case. We often work with clients who are concerned about how to keep their inherited assets protected when their marriage comes to an end. At SBK Law Group, we believe it’s important for our clients to understand their rights and the laws that apply, so they can make informed decisions and safeguard what is rightfully theirs.
Under Illinois law, the courts distinguish between marital and non-marital property. This distinction sometimes takes center stage when dividing property in a divorce proceeding. Inherited assets can, in many situations, be classified as non-marital property. However, certain actions during the marriage can change how those assets are treated under the law. The goal is to preserve your inheritance as your own, and doing so requires both knowledge and care from the very beginning.
Illinois divorce law is governed by the Illinois Marriage and Dissolution of Marriage Act (750 ILCS 5/503). Section 503(a) states that property acquired by gift, legacy, or descent (such as an inheritance) is considered non-marital property. This means that if one spouse receives an inheritance during the marriage and keeps it separate, that asset may remain theirs alone and not be subject to equitable division.
However, inherited assets can become marital property if they are commingled. For example, if inherited funds are deposited into a joint account and used to pay marital expenses, or if inherited property is retitled in both spouses’ names, the court may consider the inheritance to have been converted into marital property. Once that happens, your spouse could claim a share in the asset during divorce proceedings.
To maintain inherited property as non-marital, the most important step is to keep it separate from your marital assets. For instance, by opening an individual account for any cash inheritance and not mixing it with joint funds. It can also mean maintaining sole ownership of inherited real estate and avoiding improvements or mortgage payments using marital funds.
We often advise our clients to document every aspect of the inheritance, how it was received, where it was deposited, and how it was used. A clear paper trail goes a long way towards proving that an asset should be treated as non-marital during divorce. But even then, it is far from simple – key is to have the guidance of your attorney, ideally when you inherit and well before a dissolution of marriage.
Another effective way to protect inherited assets is through a prenuptial or postnuptial agreement. These legally binding documents allow both spouses to agree on how certain assets, including inheritances, will be treated in the event of divorce. Illinois courts will generally enforce these agreements as long as they are entered into voluntarily and with full financial disclosure from both parties.
If you expect to receive a significant inheritance, we recommend discussing a prenuptial agreement before marriage. If you’re already married and receive an inheritance, a postnuptial agreement can serve the same purpose. These agreements can provide peace of mind and prevent future legal disputes over the ownership of inherited assets.
Trusts are also a useful tool for preserving non-martial characteristics of property while also planning for life’s uncertainties. Whether a trust is created by the giver of an inheritance, or created by the receiver of an inheritance, trusts offer many benefits to married people both during the marriage as well as in the event of a divorce. Here again, if you expect to receive a significant inheritance, we recommend discussing estate planning before marriage or, if already married, then before the inheritance is received.
If inherited property if found by the court to have been commingled with marital assets and is ruled to be marital property then, barring an agreement between the parties, the court will consider several factors to determine whether the asset should be divided. Under 750 ILCS 5/503(d), the court must divide marital property equitably, not necessarily equally. This gives judges discretion to award a larger share to one spouse, but it also introduces uncertainty. The best way to avoid this risk is to maintain clear records and avoid any mixing of non-marital and marital property.
If you deposited inherited money into a joint account, it may be presumed that you intended to gift it to the marriage. However, all hope is not lost. This presumption can be rebutted with strong evidence, such as documentation showing that you never intended to share it. Courts in Illinois may still classify the inheritance as non-marital if you can prove your intent and track how the funds were used. The sooner you involve an attorney to advise you, even in the absence of a dissolution of the marriage, the better.
If you inherited a home and added your spouse’s name to the title or used marital funds for improvements, the property might now be considered marital. However, if the inheritance was kept in your name and marital funds were not used, you likely have a strong case to retain full ownership. Each case depends on the specific facts and how the property was handled during the marriage.
Using inherited money to pay off a marital mortgage can convert that inheritance into marital property. The court may treat the funds as a contribution to the marital estate, making it more difficult to claim the inheritance as your sole asset. However, it’s possible to make an argument for reimbursement under certain circumstances.
Yes. You can include provisions in a prenuptial or postnuptial agreement that clearly state any future inheritance will remain non-marital. This foresight can prevent costly litigation if the marriage ends later. Courts generally enforce these agreements, assuming they meet legal requirements under Illinois law.
Yes. The burden falls on the spouse claiming an asset is non-marital to in fact show supporting proof that the asset was inherited. . What the court considers acceptable proof may vary given the facts of the case. You should consult an attorney for advice on this issue.
If the inheritance was received before the marriage but later commingled with marital assets, it may lose its non-marital status. Illinois courts will analyze how the property was used and whether it remained distinguishable from the marital estate.
At SBK Law Group, we help clients protect what matters most. If you’re going through a divorce and are concerned about inherited property, we can provide the clarity and legal strategies you need. Our legal team is dedicated to preserving your financial future and ensuring Illinois law works in your favor.
Contact the Will County divorce attorneys at SBK Law Group today at 630-427-4407 to schedule your consultation. We represent clients in Will County, Dupage County, and throughout the greater Chicago area. Let us help you take the right steps to protect your inheritance and your future.
