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Is Your Inheritance at Risk During Divorce?
Westport divorce lawyer protects your family wealth
If, during your marriage, you receive an inheritance from a family member or a bequest from anyone else, you might expect that it would be yours to keep should you get divorced. That expectation might be a reasonable one to hold in some states, but because Connecticut law applies the concept of equitable distribution, you would be way off the mark. In Connecticut, all assets received by either spouse during the course of a marriage are considered marital property and thus are subject to division in a divorce action. If you are concerned about preventing the loss of part of your inheritance, trust a Westport divorce attorney at Needle | Cuda to safeguard your rights. For decades, we have successfully litigated asset division to help our clients retain more of their wealth. We are prepared to fight for a truly equitable result in your case.
How Connecticut treats an inheritance during equitable distribution
Connecticut applies the concept of equitable distribution to property acquired during a marriage, which means that courts divide assets and debts in a manner that is fair but not necessarily equal. The courts rely on the Connecticut statutes to determine what is fair. Under Connecticut’s equitable distribution scheme, how an asset was acquired is a factor a court considers when determining what is fair. An inheritance received by one spouse may be regarded as an asset that will not be divided equally because neither party contributed to the acquisition of the inheritance
Connecticut law does not draw a hard line between separate property and marital property and has a broad definition of marital property. The Connecticut General Statutes explicitly state that “the Superior Court may assign to either spouse all or any part of the estate of the other spouse.”
The question is, what factors will a court consider in the determination of the division of an inheritance?
Factors that may affect a judge’s decision on dividing an inheritance
Connecticut law requires a judge conducting equitable distribution to consider a range of factors, including:
- The length of the marriage and the timing of the inheritance — If the inheritance was received in year 3 of a marriage and in year 20 the parties are getting a divorce, then due to the long length of time that has lapsed between the date of the inheritance and the divorce, there is a greater likelihood that the inheritance will be equally divided.
- Overall value of the marital estate — In the event the value of the inheritance is small in comparison to the value of the overall marital estate, there is a greater likelihood that the inheritance will remain with the spouse who received such inheritance. In the event the value of the inheritance makes up the bulk of the value of the marital estate, the likelihood is greater that the inheritance will be divided between the spouses.
- How the inheritance was used prior to the start of the divorce action — If the inheritance was used to support the needs of the family, there is a greater likelihood that the inheritance will be divided between the spouses. If the inheritance was never used and was kept in a segregated account, then the likelihood is greater that the inheritance will remain with the spouse who received the inheritance.
- What is the inheritance? — If the inheritance is a parcel of real estate, there are several facts that will make an impact. For example, how long has the real estate been in the family? Did the divorcing couple use marital funds to keep up, maintain or improve the property? How many people have title to the property (i.e. siblings, cousins)? Similar facts will impact the division, if any, of an inheritance of jewelry or fine art.
Ways to keep your inheritance after divorce in Connecticut
The best way to keep your inheritance after divorce is to protect it ahead of time. One method is to state in a prenuptial agreement that any future inheritance will be treated as separate property not subject to distribution. If you are already married, you can execute a postnuptial agreement including the same provision. You can also place the property in a family trust, with instructions for distribution in the event of divorce. A Westport divorce lawyer at our firm can explain the full range of options for fully protecting your inheritance.
Contact our knowledgeable Westport divorce lawyers to protect your inherited assets
Needle | Cuda helps divorce clients in lower Fairfield County and throughout Connecticut protect asset obtained via inheritance. Our reputable attorneys provide highly responsive service and effective representation focused on positive results. Please call 203-557-9500 or contact us online to schedule an appointment at our Westport office.
Frequently Asked Questions (and Answers) about asset and property division in Connecticut divorce
What is equitable property division in Connecticut divorce?
Equitable property division is the "fair" distribution of property owned by both spouses—either marital or separate—in the event of a divorce as determined by the court. The critical term is fair concerning equitable property division proceedings. As discussed above, what the court deems "fair" in equitable property division is rarely equal. Connecticut is an all-property state, meaning that all types of property are considered when the court makes its findings. It is important to know the difference between the types of property to be divided.
Is equitable distribution the same as 50/50?
While a divorce decree could result in a 50/50 split on all marital property, in practice, that rarely happens. In Connecticut, equitable distribution means that the court will consider various factors when they decide how the marital property will be divided. This could result in one spouse receiving the lion's share of the property to balance an inequity in earning power or to provide a financially dependent spouse with the means to become self-sufficient.
What is separate property in Connecticut divorce?
Separate property is any property owned solely by one spouse, such as property acquired before the marriage, gifts, or inheritances. In most equitable division jurisdictions, separate property would be excluded from the court's distribution discretion because property established to belong to one person should remain with that person. However, because Connecticut is an all-property state for the purposes of divorce, even the property which has been proven to be owned or under the control of only one spouse is still subject to distribution. This includes exotic property like art, cars, and other unique or custom items.
What it marital property in Connecticut divorce?
Marital property is property obtained by either party while married. This property can include items like cars, houses, or other financial assets acquired while you and your spouse are married. Even assets like retirement funds can be distributed in divorce to the extent that those funds were added to the account while married.
Will I lose my 401(k) in a divorce?
It is unlikely that any spouse will be left without any interest in their 401k at divorce. But because retirement accounts are eligible for "Equitable Distribution" in a divorce, it is possible that a spouse could be forced to part with a portion.
What can I do if I don't know anything about my spouse's retirement accounts?
Through the discovery process, your lawyer can demand that your spouse provide all relevant financial information. This may include whether they have a retirement account and which institution services it. Spouses that seek to hide assets may be sanctioned by the court.
How do I know my prenuptial agreement is enforceable?
For a prenup to be valid in Connecticut, it must meet several requirements. The judge handling your divorce will be responsible for determining the validity of a prenup. However, the divorce attorneys at Needle I Cuda know the law surrounding prenups and will be your best resource in evaluating the potential validity of any prenuptial agreement.
Does the court favor the wife when deciding who gets the house?
The law in Connecticut does not favor either spouse. A judge deciding who gets the house is bound to follow the law. They are not permitted to favor either spouse when determining what is equitable. Still, a spouse that was the primary caretaker for the children during the marriage can argue that when considering all of the factors, they should remain in the marital home. Spouses must remember that that will not be the only factor considered by the court.
I have been given primary custody. Will I get to keep the house?
The court may award the marital home to the spouse that is awarded primary physical custody. Still, primary custody is defined as having the children more than 50% of the time. In other words, having primary custody is different from sole physical custody, which would mean one spouse has the children all of the time. In a sole physical custody situation, the spouse caring for the children full-time may be likely to get to remain in the marital home.
Can my spouse and I sell our home (the martial residence)?
Yes, but not unless an order from the court has been obtained or you and your spouse agree that it is best to sell the home--and the sale of your house is incorporated into your final (court ordered) divorce decree. Clearly, before agreeing as impactful as this, you will want to consult with a divorce attorney before any agreement is finalized. Issues surrounding taxes, title, the mortgage, possible liens, and how the proceeds of the sale will be allocated will need to be sorted before a sale is effectuated.
When we were married, my spouse moved into the home I owned. Will I be able to keep in in the divorce?
It depends. In short, all property, no matter when it was acquired and by whom, can be divided and distributed upon divorce in Connecticut. This can potentially include a property one spouse owned in full before the marriage. While you may be permitted to argue that certain property should be excluded from the marital estate, the law in Connecticut does allow for equitable distribution of all property of both spouses.
Who will get the marital house in the divorce?
Who will get the marital home after the divorce depends on several factors. If there is an agreement between the spouses on what will happen to the marital home, then that likely will be the result. For divorces where there is no agreement, a judge will decide based on the "Equitable Distribution" factors that must be considered by statute . If there are children involved who are currently living in the home, that may also have a bearing on who will get the home.
Can I lose my business in divorce?
While it is rare that a spouse will lose all interest in a business due to a divorce, the business may need to be sold. Still, when this happens, the proceeds from the sale will be distributed between the parties. It is unlikely a business asset will be sold with only one spouse receiving all of the proceeds.
How is the value of the business determined?
How much the business is worth can be determined through the use of business valuation experts. These professions will look at the business's data and draft reports that will tend to show what the business is worth. Another method is comparing the sale prices of similar businesses within the same industry.
I don't know anything about my spouse's business. How can I obtain information about his business? What can I do?
Through a process known as discovery, your lawyer will be able to request all relevant information concerning the business and its financial health. Valuation experts can then analyze that info to paint a picture of the business asset's worth and projected outlook. Once a value is determined, the business asset or the value assigned to the business asset may then be distributed by the court upon divorce.
When we were married, my spouse moved into the home I owned. Will I be able to keep in in the divorce?
It depends. In short, all property, no matter when it was acquired and by whom, can be divided and distributed upon divorce in Connecticut. This can potentially include a property one spouse owned in full before the marriage. While you may be permitted to argue that certain property should be excluded from the marital estate, the law in Connecticut does allow for equitable distribution of all property of both spouses.
