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Prevent an inheritance from being community property in divorce

You may be like many other couples who share everything during their marriages. This includes any windfalls you may receive upon the death of a loved one. Should you take steps to share your inheritance if you believe your marriage is ending? Are you about to marry and come into the marriage with an inheritance? Will you share your good fortune with your future spouse? You may want to consider these questions before taking any action.

Louisiana is a community property state. That means that if you divorce, the court begins by assuming that you and your spouse own all property equally. If you received an inheritance -- or anticipate receiving one in the future --, it may end up as community property depending on how you treat it.

What is commingling?

Ordinarily, the law considers inheritances to be the separate property of the recipient. However, what you do with it makes a difference. If you commingle it with other marital property, your inheritance may lose its status as a separate asset. For instance, if you have a joint deposit account with your spouse, and you place the funds into it, the court may consider your inheritance community property in a divorce.

If you want to make sure that your windfall remains your separate property, you should keep it separate from other marital assets. Even your inheritance is something other than money, say, real estate, keeping the title in your name alone may not be enough, however. If you use marital funds to improve or maintain the property, that may also be considered commingling.

What should you do if your inheritance came before the wedding?

If you obtained your inheritance prior to your wedding, you may want to consider a prenuptial agreement. In it, you can identify the property as a separate asset and agree, in writing, that it will remain your separate property in the event of a divorce.

What happens if you already deposited it into a joint account?

If you are reading this after you technically commingled the funds, all may not be lost. You will need to prove to the court that you never intended to share your inheritance with your spouse. This may be an uphill battle, but it can be done. You may be required to forfeit a portion of it, however.

What can you do to keep your inheritance?

The burden of proof is on you to prove to the court that the inheritance should be separate property. This requires an understanding of the law and knowledge of how it applies to your situation. It may be in your best interest to enlist the aid of an experienced legal advocate to help you.

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