Protecting Your Inheritance From Your Spouse In a Pennsylvania Divorce

When parents are considering their estate plans and making decisions as to whether to leave assets to a married child, parents often question whether their child’s spouse would receive the assets they are leaving to their child, if the child would divorce.

In Pennsylvania, inheritances hold a unique position when it comes to divorce proceedings. Unlike many marital assets, inheritances are generally considered separate property and are not subject to division during a divorce. However, this protection is not absolute, and understanding the nuances can be crucial for safeguarding your inherited assets.

By default, any inheritance received by one spouse during the marriage is considered separate property in Pennsylvania. This means that in the event of a divorce, your spouse typically cannot claim a portion of your inheritance as part of the marital estate.

It's important to note that an inheritance can lose its protected status under certain circumstances, including but not limited to the following:

1. Gift to the Marriage: If you intentionally "gift" the inherited asset to the marriage, it may become marital property. For example, using inherited funds to purchase a family home in both spouses' names could be seen as converting the inheritance into a marital asset.
2. Commingling: Mixing inherited funds with marital funds in joint accounts can blur the lines between separate and marital property.
3. Using Income for Marital Expenses: If you use income generated from inherited assets to pay for joint marital expenses, this could potentially open the door for your spouse to claim a portion of the inheritance.

To maintain the separate status of your inheritance, consider these steps:

1. Keep inherited assets separate: Maintain inherited funds in a separate account under your name only.
2. Document everything: Keep clear records of the inheritance and how it's been used or invested.
3. Avoid using inheritance for joint expenses: When possible, use other marital funds for shared expenses.

While the above precautions are helpful and may ultimately achieve your goal of keeping your inheritance from your spouse in the event of a divorce, there is another option to consider which is more “iron-clad”: a marital agreement - either a pre-nuptial agreement (executed before marriage) or a post-nuptial agreement (executed after marriage). This legal document can clearly define how inherited assets will be treated in the event of a divorce.

Key points about marital agreements:

• They can be created before or after receiving an inheritance, as long as it is before a divorce action is filed.
• Both spouses must agree to the terms and sign the document voluntarily.
• It's highly recommended to have separate attorneys review the agreement for each spouse.

While Pennsylvania law offers some inherent protection for inheritances in divorce, taking proactive steps to maintain the separate nature of these assets is crucial. A well-crafted marital agreement provides the strongest safeguard, offering peace of mind and clarity for both spouses regarding inherited wealth (and to their parents, who are considering leaving them the inheritance in the first place).

Remember, laws can be complex and situations unique. Always consult with a qualified attorney in Pennsylvania for personalized advice on protecting your inheritance in the context of your specific circumstances.

If you would like a consultation on this or any legal matter, do not hesitate to contact Scaringi Law at 717-657-7770.