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How to Protect Your Children's Inheritance in Divorce

By George Khoury, Esq. | Last updated on

This post was updated on March 28, 2022

Divorce causes a lot of upheaval for everyone involved. Amidst the emotional turmoil, you also have to make legal choices to safeguard the futures of you and your children. These include protecting inheritances that you planned to pass on to your children.

If you and your spouse have children, then for the most part protecting their inheritance rights will be pretty straightforward. You will need to update your will after your divorce to make sure you pass on your estate to your children. Even if you don't plan on divorcing, you can write a will that gives most assets to your children instead of your spouse (you two should talk about this first, though).

Parents need to take precautions for non-marital children or when parents believe an adult child is at risk of divorce.

Is an Inheritance Marital Property?

The law does not treat inheritances the same as it does normal marital property in a divorce. Generally, so long as you do not blend it with marital property, an inheritance remains separate property, just like any premarital assets you owned before getting married. This occurs even if you receive an inheritance during your marriage.

Commingling occurs when you mix separate property, usually money, with marital property. For instance, depositing an inheritance check into a joint bank account that both you and your spouse use is likely to convert it from separate property to marital property. Another scenario that a court could consider commingling would be if you put your inheritance in a separate account but use those funds for upkeep and maintenance of your house that you and your spouse own together.

Protecting Non-Marital Children

Although non-marital children will have inheritance rights if you die without a will, it will require navigating the probate process and potential disagreements with relatives. If you want to ensure that children born before or outside of marriage will be able to inherit without that difficulty, you should get to work on an estate plan.

Generally, upon death, each spouse can bequeath their own separate property and their share of the marital property how they see fit. This means if you want to make sure that your child born outside of your current marriage will inherit a specific sum or piece of property, you should specify that in your will.

This is a common occurrence for second marriages, where each spouse brings their own children into a new blended family. Because you are married again, your spouse would likely receive everything if you died without a will. Your will can protect your children from a prior relationship.

Protecting Adult Children at Risk of Divorce

If you are concerned that your adult child's spouse may attempt to take part of an inheritance in a divorce, you can take legal steps to protect the inheritance. To make sure you pass on an inheritance to just your child and it remains separate property, you cannot bequeath the assets to both your child and their spouse. A will should specify that the inheritance is only for your child.

However, even if you leave property to just your own child, you should have a conversation with them about making sure not to commingle it with marital property.

A popular way to protect a child's inheritance is by creating a trust solely in the name of your child in your will. By using a trust, you can ensure that your child's disgruntled, soon-to-be ex-spouse won't be able to lay claim to an inheritance.

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