How Are Assets Acquired through Inheritance Handled in an Illinois Divorce?

 Posted on December 22, 2022 in Family Law

dupage county divorce lawyerFew marital assets cause as much confusion during divorce as inheritances because spouses can often be in disagreement about what should happen with inherited assets. 

Title 750 Illinois Compiled Statute (ILCS) § 5/ is otherwise known as the Illinois Marriage and Dissolution of Marriage Act and is the governing state law in divorce cases. Certain sections of the Illinois Marriage and Dissolution of Marriage Act specifically address inheritance issues.

Inherited Assets During Divorce 

Under 750 ILCS § 503(a), all property acquired during a marriage is classified as marital property, except when the property is acquired:

  • By gift, legacy, or descent

  • In exchange for such property

  • Before the marriage

  • After a judgment of legal separation

Premarital and postnuptial agreements can also affect property ownership during divorce. 

Transmutation of Property Can Influence Divorce Significantly

Inheritances in divorce cases are usually non-marital property. However, this is not always the case. 750 ILCS § 503(c) states that non-marital property could become marital property in some instances. Assets could be commingled or go through a process known as transmutation.

When a spouse places non-marital property in joint tenancy with the other spouse, it creates a presumption that the property was a gift to the marital estate. For example, an inheritance may become commingled with marital property when a spouse receiving an inheritance places the inheritance into a joint bank account.  

Sometimes, forensic accounting or asset tracing is needed to determine whether an asset is marital or non-marital during divorce. If an inherited asset is determined to be non-marital property, it is assigned to the spouse who inherited the asset. However, if an inheritance has been transmuted and is now classified as a marital asset, both spouses have a right to an equitable share of the asset's value. 

Call Us Today to Speak with a DuPage County Divorce Attorney

Are you concerned about inherited assets during your divorce? Make sure to contact the Hinsdale divorce lawyers at Law Office of Martoccio & Martoccio for help reviewing your entire situation and outlining what steps you will need to take. Our attorneys have more than 75 years of combined legal experience. If you are dealing with a complex property issue during your divorce, do not hesitate to contact us for help. 

Our firm understands the tremendous stress that spouses face when dividing their marital property, and our firm will be able to work closely with you and protect your rights. Call 630-920-8855 or contact us online to receive a free initial consultation.



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