Is an Inheritance Marital Property in Florida?
No. Under Florida's equitable distribution law (F.S. 61.075), an inheritance received by one spouse is classified as non-marital (separate) property, even if received during the marriage. This means it is generally not subject to division in a divorce. However, this protection is not absolute. The most common way an inheritance loses its protected status is through commingling, mixing inherited assets with marital funds.
At Barnes Walker, our estate planning attorneys help both the person leaving the inheritance and the person receiving it structure their assets to preserve non-marital status.
How Commingling Destroys Inheritance Protection
Commingling occurs when inherited assets are mixed with marital assets, making it difficult or impossible to trace the original inheritance. Common mistakes include:
- Depositing inherited funds into a joint bank account shared with a spouse
- Using inherited money to improve jointly owned property (such as renovating the marital home)
- Paying down the mortgage on a jointly titled property with inherited funds
- Investing inherited money in a joint brokerage account
- Titling inherited real property in both spouses' names
Once commingled, the burden shifts to you to trace the inherited funds back to their original source. If tracing is impossible, the court may classify the entire account as marital property.
How to Keep an Inheritance Separate
If you receive (or expect to receive) an inheritance, follow these rules to maintain its non-marital status:
- Keep inherited assets in a separate account titled only in your name
- Never deposit inherited funds into a joint account
- Do not use inherited funds for joint expenses or to improve marital property
- If you invest the inheritance, maintain a separate investment account
- Keep records: Preserve documentation showing the source of the inheritance (probate documents, trust distribution letters, bank statements)
- If you buy property with inherited funds, title it in your name alone
- Consider a postnuptial agreement that explicitly identifies the inheritance as non-marital property
How the Person Leaving the Inheritance Can Protect It
If you are the parent or grandparent creating the estate plan, you have the most control over protecting the inheritance from a beneficiary's divorce:
Leave Assets in a Spendthrift Trust
Instead of leaving assets outright, use a spendthrift trust. The trust holds the assets, a trustee controls distributions, and the beneficiary's spouse has no legal claim to the trust assets. This is the strongest protection available.
Name an Independent Trustee
Naming an independent trustee (someone other than the beneficiary or their spouse) adds an additional layer of protection. The independent trustee makes distribution decisions based on the trust terms, reducing the argument that the beneficiary has unlimited access to trust funds.
Include Anti-Commingling Language
Your trust can include specific provisions instructing the beneficiary not to commingle distributed funds with marital property. While this does not have the force of law, it establishes the grantor's intent and can be persuasive evidence in a divorce proceeding.
Prenuptial and Postnuptial Agreements
A prenuptial agreement (before marriage) or postnuptial agreement (during marriage) can explicitly designate an inheritance as non-marital property. This provides the clearest legal protection because both spouses agree in writing that the inheritance will not be subject to equitable distribution.
These agreements are especially important when:
- The inheritance is substantial
- The inheritance includes a family business or real property
- The beneficiary has children from a prior relationship
- The marriage involves a significant wealth disparity
Frequently Asked Questions
Is an inheritance considered marital property in Florida?
No. An inheritance is non-marital (separate) property under Florida law, even if received during the marriage. However, it can lose this status if commingled with marital assets.
How do I keep my inheritance separate from marital property?
Keep inherited assets in a separate account in your name only, never deposit into joint accounts, maintain documentation tracing the inheritance, and consider a postnuptial agreement.
Can a trust protect an inheritance from a beneficiary's divorce?
Yes. A spendthrift trust keeps inherited assets separate from the beneficiary's marital property. The trustee controls distributions, and the beneficiary's spouse has no claim to the trust.
What happens if I mix inherited money with marital funds?
Commingling can convert inherited funds into marital property subject to equitable distribution. You must trace the funds to their original source to preserve their non-marital status.
Want to protect your family's inheritance from divorce? Contact Barnes Walker for estate planning guidance.