Can an Inheritance Be Considered Marital Property in Virginia?

When facing a divorce, one of the most stress-inducing questions for many individuals is, “What happens to my assets?” For those who have received an inheritance, there are often deeper concerns about whether it will remain solely theirs.

The short answer? An inheritance is typically considered separate property under Virginia law. However, at Mahoney Richmond Thurston, PLLC, our extensive experience with complex property divisions has shown that the reality is rarely so straightforward.

In this post, we’ll break down the circumstances when an inheritance may or may not be treated as marital property—and how you can take steps to safeguard what’s rightfully yours.

Separate Property in Virginia

What Qualifies as Separate Property?

Virginia law defines separate property under the Code of Virginia § 20-107.3. Separate property includes assets an individual owned before the marriage or acquired during the marriage through inheritance, gift, or bequest—but only if they are kept distinct from marital assets.

For example, if you inherit $100,000 and deposit it into a separate account under your name, it will likely remain your separate property. Similarly, any asset purchased with that inheritance, like a car titled solely in your name, would generally also be classified as separate property.

Commingling and Transformation of Separate Property

What Is Commingling?

While inheritances often start as separate property, actions taken during the marriage can transform them into marital property. This process is known as commingling, and it occurs when the inherited funds or assets lose their distinct identity due to being mixed with marital property.

Examples of Commingling

Here are scenarios where commingling could complicate your inheritance:

• Depositing Into a Joint Account  

If you deposit your inheritance into a joint bank account shared with your spouse and use that account to pay bills or make joint purchases, the inheritance may become marital property.

• Investing in Joint Assets  

Using the inheritance to purchase shared investments, such as a stock portfolio or a jointly owned home, could reclassify the inheritance.

• Substantial Contributions  

If your spouse contributes significantly to maintaining, improving, or growing the inherited asset (e.g., helping run a business you inherited), the court may deem it partially marital property.

Once an inheritance is commingled to the point that it cannot be easily traced back to its original, separate state, it is at risk of being classified as marital property.

Protecting an Inheritance

Best Practices to Keep Assets Separate

If you want to ensure your inheritance remains yours, here are a few strategies:

1. Keep Separate Accounts  

Deposit inherited funds into a bank account under your name alone. Avoid using this account for joint bills or family expenses.

2. Avoid Joint Investments  

Use the inheritance only for assets that you plan to keep separate and ensure they’re titled solely in your name.

3. Maintain Clear Records  

Preserve documentation showing the origin of the inheritance, such as a will or gift letter. This helps trace the inheritance and prove its separate nature.

4. Consider a Marital Agreement  

A postnuptial agreement can explicitly state that your inheritance will remain separate, offering additional legal protection.

These steps may seem tedious, but they can safeguard your inheritance and prevent disputes down the road.

The Impact of an Inheritance on Support Obligations

Even when inheritances are classified as separate property, they can still influence financial matters in your divorce, including spousal support and child support.

• Spousal Support  

Courts in Virginia assess the financial resources of each spouse when determining spousal support. If your inheritance allows you to live comfortably without employment, it can be factored into support calculations.

• Child Support  

Similarly, your financial capability as a parent, as influenced by your inheritance, can affect how child support responsibilities are divided.

For example, a spouse who no longer needs spousal support due to a significant inheritance may receive a lower award or none at all. Conversely, an inheritance could increase the amount of support a person is required to pay.

Take Charge of Your Financial Future Today

Navigating a divorce is never easy, especially when protecting assets you hold dear, like an inheritance. While inheritances are generally considered separate property in Virginia, specifics such as commingling or spousal support considerations can significantly complicate matters.

The team at Mahoney Richmond Thurston, PLLC, is here to help you make informed decisions about your financial future. Whether you’re in the early stages of considering divorce or already involved in legal proceedings, we offer compassionate and honest guidance tailored to your specific situation. Contact us today to schedule a consultation and protect what matters most to you.