Is an Inheritance Considered Your Separate Property?

 Posted on February 20, 2025 in Division of Assets

An asset received through inheritance such as money, a family heirloom, or real estate can be incredibly beneficial. However, if you are married, you may wonder whether or not an inherited asset is your own separate property. There is not a straight yes-or-no answer to this question, and if you are concerned about the property’s identity, an Illinois family law attorney can provide you with legal advice.

Pesce Law Group, P.C. has extensive experience handling complex issues of family law, including inheritance issues. Even if you are not considering divorce, we can help you assert your property rights for your peace of mind.

The Difference Between Marital and Separate Property

In Illinois, all assets in a divorce are categorized as either marital or separate. These assets may include bank accounts, real estate, debts, personal property, and more. Separate property is not subject to division by the courts, and it includes assets acquired before the marriage or given to one spouse as a gift.

By definition, you would expect an inheritance to be considered separate property – and it usually is. Whether you got a house or a lump sum of money from a relative, if it was given to you specifically, it is considered yours. This does not mean an inheritance cannot become marital property. If you want to keep full ownership of your inheritance in a divorce, you may need to take precautions ahead of time.

Commingling Assets

An asset can lose its identity as separate property if it becomes commingled. What this means is that your inheritance can become marital property if you mix it with your spouse’s assets or your shared marital assets. For example, if you put inheritance money into a joint bank account, it might no longer be distinguishable from your shared money.

Certain forms of property are more easily commingled than others. If you received expensive jewelry as a gift from a family member, it might remain your separate property more easily than a house that you inherited that you have lived in with your spouse for twenty years. At Pesce Law Group, P.C., our attorneys can advise you on how to preserve your inheritance and advocate for your right to keep it.

Consider a Spousal Agreement

Prenuptial and postnuptial agreements can be a touchy subject between spouses. Some people see it as planning for divorce, casting a cynical light on the marriage. That being said, if you want to protect your inheritance and other assets, a spousal agreement can be very helpful. You can set aside your inheritance as separate property in clear terms, settling any questions about ownership before divorce ever comes up.

Spousal agreements are legally binding as long as you and your spouse agree to the terms. A judge is unlikely to strike down a spousal agreement unless it is grossly unfair to one party. At Pesce Law Group, P.C., we can help you write a comprehensive agreement that protects your rights to an inheritance.

Meet With a Naperville, IL Divorce Lawyer

At Pesce Law Group, P.C., we know how meaningful an inheritance can be. Our DuPage County, IL family law attorneys give divorcing beneficiaries of money and real estate bequests the practical legal advice they need to protect their property rights. To schedule a free consultation, call our offices at 630-352-2240 today.