I live in New Jersey, which is a community property state. My husband and I have had a very rocky relationship and are contemplating divorce for the second time. My parents are both elderly but are in good health, thankfully.
It has been suggested that when they die, I will inherit some money (about $50,000), plus an estimated $300,000 profit that would come from the sale of their home, which I would split with my sister. Is there a way I could put that in a trust or someplace where my husband would not be able to access in the event we actually file for divorce?
He has burned through all of our finances and has left us with nothing for the future, so you can understand why I would be scared. And, of course, if we choose to divorce, I don’t want my husband to get one penny.
Ready to Call it a Day
First, the good news. Inheritance is not treated as community property in most states. It’s left to you, and you alone, according to the law. Your husband does not get a look in. So if he has any ambitions about spending this money in order to keep him in the lifestyle to which he would like to become accustomed, he can think again.
There are some caveats to this, however. “This rule only holds true so long as you have never ‘gifted’ part of it to your spouse,” according to attorney Stephen J. Kaplan in Colts Neck, N.J. What if your husband claimed that you did? “There would need to be some significant evidence of a gift in order for your spouse to succeed on his or her claim in this regard.”
Never commingle inheritance received before or during a marriage, and always keep the money in a separate bank account.
“If you, for example, deposited the entire inheritance that you received into a joint bank account, and if that money stayed in the joint account for a significant period of time and then there was a divorce, the court will likely treat that money as a joint marital asset, having been ‘gifted’ roughly equally from you to your spouse,” he added.
Never commingle inheritance received before or during a marriage, and always keep the money in a separate bank account. You don’t need a trust to ensure this money remains yours should you decide to divorce. This is a rule specifically made for inheritances. It does not, for example, apply to work-related bonuses or, indeed, lottery winnings.
Good luck figuring out a way forward as a married woman or a divorcée. Your concerns about an inheritance that is hopefully years away likely speaks volumes about your feelings for this man and your marriage. Whatever you decide, choosing a life partner is the most important quality-of-life decision you will make, and often the most financially important one too.
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