Can My Spouse Come After My Inheritance in a Divorce?

 Posted on March 24, 2025 in Divorce

In Illinois, assets belonging to married individuals are classified as either non-marital or marital property. The divorce court only has jurisdiction to divide marital property and nonmarital property must be awarded to the spouse to whom it belongs, unless it was comingled.  However, even if your spouse cannot access nonmarital property (such as an inheritance) directly, it can still have other implications on support or division of assets. It’s also important that you do not commingle nonmarital assets or they can lose their nonmarital status or the marital estate can be subject to reimbursement, meaning your spouse essentially gets a credit for the marital contributions made to the nonmarital property.

The Illinois Marriage and Dissolution of Marriage Act defines the types of property and specifically defines non-marital property into categories as follows:

1. Property acquired by gift, legacy or decent;

2. Property acquired in exchange for property acquired prior to the marriage;

3. Property acquired after the divorce is final;

4. Property excluded by valid agreement of the parties (prenuptial or postnuptial agreements);

5. Property awarded to a spouse via a judgment against the other spouse;

6. Property acquired prior to the marriage (exception for retirement assets which can have both a nonmarital and marital component);

7. Increase in value of nonmarital property;

8. Income from nonmarital property (subject to reimbursement if appropriate)

There is a presumption that property acquired during the marriage is marital. That presumption can be overcome by showing that the property was acquired in one of the above-listed ways or was done for estate or tax planning purposes or otherwise wasn’t intended to be a gift to the marriage or other spouse.  

Many people believe that marital assets are always divided equally, however, that is not the case in Illinois. The statutes state that the assets are to be divided equitably not equally and this means that if there is good reason, the court can disproportionately divide assets that are a part of the marital estate. So, if one party earns substantially more income than the other, or one party has substantial nonmarital assets, such as a large inheritance, the court could award the other spouse a greater share of the marital home or other assets.  Courts typically do not divide marital assets too disproportionately, but even a 60/40 division can result in hundreds of thousands of dollars in losses, depending on the size of your estate.  

Furthermore, having a large inheritance could limit or reduce your ability to collect spousal support or maintenance from your spouse. The court will consider the income you receive from your inheritance as well as the size of the inheritance and its size relative to that of the overall marital estate. Often parties assume that it is income alone that determines eligibility for maintenance, however, before even applying the guideline formula the court must determine whether maintenance is appropriate and they may not believe so in the case of a substantial inheritance. An inheritance can also impact the amount of support you pay to the other spouse if you are the payor and not recipient of either maintenance or child support. While income alone determines the guideline calculations for both, a party can seek an upward deviation based upon a number of factors including assets belonging to a party, like an inheritance. Likewise, if a support obligation is set and you subsequently inherit money after the divorce is finalized, it could provide a basis to modify the obligation if it’s considered a substantial change in circumstances.

If you inherit money from family or otherwise, it’s important that you do not put those funds into a joint account or add your spouse’s name to the asset or acquire any assets with those funds that are held jointly. If you do, the court will likely view your inheritance as having been gifted to the marriage and as a result, they will become a marital asset and subject to equitable division in your divorce. Additionally, while nothing prevents you from utilizing your inheritance for marital purposes (such as remodeling your home or purchasing furnishings), there is a substantial risk that it will be determined that those funds were also a gift to the marriage and you won’t be able to recover them in a divorce. If that is not your intention, you need to have a promissory note or some other contractual agreement (like a postnuptial agreement) signed by both parties at the time memorializing everyone’s intention and making it crystal clear it’s your intention to be paid back in the event of divorce.  

Furthermore, you want to make sure that you do not contribute any marital funds to an account that would otherwise be nonmarital. For example, if you inherit a brokerage account and place it into your own name but then begin contributing $100 per month from your employment income (which is marital) then the account could fully lose its status as nonmarital because the he court is unable to trace what portion of it is nonmarital when invested into various funds with gains and losses over years. Experts can attempt to trace the nonmarital portion, but it is complex and costly and there are no guarantees the court won’t view the account as commingled.

In addition to avoiding commingling, it’s a good idea to ensure that the marital estate does not contribute to the property or increase its value in any way. For example, if your inheritance has tax implications, the inherited money, and not marital money, should pay those taxes. If you inherit real estate, you should not pay repairs, the mortgage, taxes or other expenses on the property with your employment income or other marital property. If you do these things, the marital estate can request a credit against your nonmarital asset for its contribution.

If you are expecting an inheritance or have inherited more than a nominal amount of money, or if your spouse is the recipient of a substantial inheritance, you should contact an attorney to discuss your rights and the implications in a divorce. If you are not going through a divorce currently, but have been having marital problems and want to protect your assets, you can also discuss preplanning for a prospective divorce with one of our experienced attorneys. Contact Nagle & Giese, P.C. for a free initial consultation today by calling 630-407-1200 or going to www.dupagedivorcelawyers.com.