Posted on March 21, 2019

Inheritance and Divorce in Illinois

Inheritance money is rarely given to a couple together.  Last wills and testaments almost always read “to my dear my son,” not “to my dear son-in-law.”  So, when the deceased wishes that a property goes to a single person, that property should stay with the single person…even after a divorce.  Illinois law preserves a deceased person’s wishes by making inheritance the exclusive property of the inheritance receiver after divorce, with a few exceptions.

Is an Inheritance Marital Property in an Illinois Divorce?

In Illinois, the property a divorcing couple has will be divided into two types: marital and non-marital. ”[M]arital property” means all property, including debts and other obligations, acquired by either spouse subsequent to the marriage” 750 ILCS 5/503(a)

It is initially presumed that all property in either party’s possession is marital property unless it meets one of the many exceptions including “property acquired by gift, legacy or descent.” 750 ILCS 5/503(a)(1). “Legacy and descent” means an inheritance.

So, In Illinois, inheritance is non-marital property. It is the party’s responsibility to allege that the property is non-marital by prove that the property was gained via an inheritance.  The nature of inheritances being received due to written instructions in a last will and testament makes it very easy to prove that an inheritance was an inheritance for the purposes of divorce.

The courts will take all the property the couple has and label each piece of property as “marital” or “non-marital.”

Non-marital property is kept by the spouse who has that property in their name or possession “In a proceeding for dissolution of marriage or declaration of invalidity of marriage, or in a proceeding for disposition of property following dissolution of marriage by a court that lacked personal jurisdiction over the absent spouse or lacked jurisdiction to dispose of the property, the court shall assign each spouse’s non-marital property to that spouse.” 750 ILCS 503(d). 

Inherited money is non-marital money. So, a spouse is not entitled to any inheritance money in Illinois.

Can An Inheritance Impact An Illinois Divorce? 

Marital property is distributed equitably in Illinois between divorcing couples.  This means there is not a mandatory 50/50 split of all remaining marital property but, rather, that once a property has been labeled “marital” it shall be divided equitably or fairly.

If one party receives a massive inheritance that is labeled non-marital, you can bet the other party will receive a larger portion of the marital property in the interest of fairness.

Additionally, if one party receives a large inheritance that may affect the maintenance (formerly known as alimony).  Illinois courts will consider “the income and property of each party, including marital property apportioned and non-marital property assigned to the party seeking maintenance as well as all financial obligations imposed on the parties as a result of the dissolution of marriage” 750 ILCS 504(a)(1)

An anticipated inheritance can even be considered when a divroce court allocates property and maintenance.

“Although an heir apparent has no legal or equitable right in the estate of the person whose heir he is during that person’s lifetime, there is generally no error where a court considers a future or anticipated inheritance when distributing property.” In re Marriage of Benz, 518 NE 2d 1316 – Ill: Appellate Court, 4th Dist. 1988 (citations omitted)

“Potential inheritances, just as expected degrees or licenses, are not property which can be valued and awarded to a spouse, although they can be a given some consideration in determining property distribution.” In re Marriage of Eddy, 210 Ill. App. 3d 450, 460 (1991)

What If I Receive An Advance On  My Inheritance Before A Divorce?

Receiving something from a still living parent is presumed to be a gift and is therefore non-marital property as it is “property acquired by gift, legacy or descent.” 750 ILCS 5/503(a)(1).

That a lack of future inheritance offsets the parental gift will be immaterial to your divorce.

Can An Inheritance Become Marital Property?

Any non-marital property can revert to becoming marital property if the property gets commingled with marital property. In re Marriage of Mouschovias, 831 NE 2d 1222 – Ill: Appellate Court, 4th Dist. 2005. 

Examples of co-mingling non-marital property with marital property are:

  • Depositing the non-marital funds into an account with both parties’ names on it.
  • Refinancing non-marital real estate with a mortgage that is in both parties’ names.
  • Re-titling real estate in both parties’ names on the deed.
  • Having the other party make significant improvements to the non-marital property.

Proving An Asset Is Inherited

The party asserting an asset was inherited and is, therefore, not divisible as marital property better have a copy of the will.

“Mere possession by one claiming property as a gift, after death of the owner, is universally, we believe, held insufficient to prove a valid gift.” Rothwell v. Taylor, 303 Ill. 226, 230 (1922)

“[I]t is essential to prove the delivery of the property by the donor to the donee, with the intent to pass the title to the donee absolutely and irrevocably….[G]ifts first asserted after the death of the donor are regarded with suspicion” Pocius v. Fleck, 13 Ill. 2d 420, 428 (1958)

If you have questions about how an inheritance will impact your divorce, please contact my Chicago, Illinois family law firm to speak with an experienced divorce lawyer today.

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Russell Knight

Russell D. Knight has been practicing family law as a Chicago divorce lawyer since 2006. Russell D. Knight amicably resolves tough cases while remaining a strong advocate for his client’s interests.

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