Inheritance and divorce in Illinois

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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  1. […] and not subject to division during a divorce. An advance on an inheritance needs to have some kind of proof that it was, in fact, an advance on an inheritance. But, if the […]

  2. […] 750 ILCS 5/503 outlines exceptions to what’s marital: inheritances, gifts, […]

  3. […] the gun was inherited by […]

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Inheritance and Divorce in Illinois

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 wished that a property go to a single person, that property should stay with the single person…even after a divorce.  Illinois law provides for exactly that scenario with inheritance and divorce, with a few exceptions.

Is an Inheritance Marital Property in an Illinois Divorce?

In Illinois, the property a divorcing couple has is 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 still the responsibility of the party alleging it is non-marital property to prove that it was, in-fact, 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 his or her 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). 

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 labelled “marital” it shall be divided equitably or fairly.

If one party receives a massive inheritance which is labelled 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 effect 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)

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 the parental gift is offset by a lack of future inheritance will be immaterial to your divorce.

Can An Inheritance Become Marital Property?

Any property that was non-marital can revert to becoming marital property if the property gets co-mingled 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 have both parties’ names on the deed.
  • Having the other party make significant improvements to the non-marital property.

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