Divorce and the Division of Inherited and Gifted Property


Every divorce in Florida follows the laws of equitable distribution. Meaning all marital property is subject to equitable and fair division between the couple. However, one of the key issues in this equitable distribution is defining each item of property as marital or separate property. There are many cases where inherited property and gifts have come under a close microscope to properly classify them according to the law. Therefore, it is important to employ an experienced Orlando Divorce Attorney who can argue the classification of this property in your favor.

Under Florida Statute 61.075 non marital property includes, “assets acquired separately by either party by noninterspousal gift, bequest, devise, or descent, and assets acquired in exchange for such assets.” Therefore, in many cases, inherited items or gifts by a single spouse, are deemed non marital or separate property, even if acquired during the marriage. Further, even if you use the inherited funds or gift to obtain a new asset, the new asset will remain non marital, if only non marital funds were used to acquire it. However, these inherited gifts can turn into marital property if not properly handled when acquired.

When determining if an inheritance is marital or non marital, “it is the task for the trial court in a dissolution proceeding to determine whether the recipient intended that the assets remain non-marital or whether the recipient’s conduct during the marriage gives rise to the presumption of a gift to the other spouse.” Lakin v. Lakin, 901 So. 2d 186, Fla. Dist Court of Appeals. Generally, the court will look to the conduct of the spouse who inherited the property to determine the proper classification. Therefore, inherited gifts may be deemed to be marital property subject to equitable distribution if the inheritance was deposited into a joint bank account with the spouse, or the proceeds were used to pay marital bills or debts. In these scenarios, the spouse who inherited the assets commingled the inheritance with marital funds, resulting in a blurred line between separate and marital property. When you commingle these funds, you are implicitly allowing your spouse to access the proceeds, therefore, classifying them as marital assets. It is crucial to keep inherited funds or gifts separate from marital property and to ensure only you have access to the proceeds. The court requires a clear display of the financial separation of the inheritance and that the funds are solely from an inherited gift in order to prove the non marital characteristics.

Inherited and gifted property can be difficult to classify as marital or non marital property, especially if you do not have the experience and knowledge of the unique features of the law. Therefore, it is important, in order to protect your rights to certain property, that you employ the assistance of a knowledgeable Orlando Divorce Attorney to argue and protect your rights throughout your case.

Speaking to an attorney at our Orlando office is free of charge, and we accept calls 24 hours a day, 7 days a week. Contact us at 407-512-0887 or complete an online contact form to get in touch with a member of our team today.

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