An inheritance can become an important issue when spouses divorce, particularly when one spouse received significant money, real estate, investments, or other property from a family member. A common assumption is that an inheritance automatically belongs exclusively to the spouse who received it and therefore cannot be divided in a divorce. Massachusetts divorce law, however, is more complicated.

Unlike many states, Massachusetts does not automatically exclude inherited property from consideration in a divorce. Depending on the circumstances, an inheritance may be included in the marital estate and considered when determining an equitable division of property.

Is an Inheritance Automatically Separate Property in Massachusetts?

No. Massachusetts does not follow a strict rule that an inheritance is always separate property simply because it was left to only one spouse.

Under Massachusetts General Laws Chapter 208, Section 34, a Probate and Family Court judge has broad authority when dividing property in a divorce. Massachusetts permits the court to consider property owned by either spouse, regardless of whether it was acquired before or during the marriage. This can include property received through an inheritance.

That does not mean an inheritance will automatically be divided equally between the spouses. Rather, the inheritance may be part of the property considered by the court when determining what constitutes an equitable division under the particular circumstances of the marriage.

Does It Matter When the Inheritance Was Received?

The timing of an inheritance can be important, but it does not necessarily determine the outcome.

For example, a spouse who inherited money shortly before a divorce and maintained it separately may have a stronger argument for retaining the inheritance than a spouse who received an inheritance many years earlier and used those funds throughout a long-term marriage.

Similarly, an inheritance received before the marriage is not necessarily beyond the court’s consideration. Massachusetts courts can consider assets acquired before the marriage as well as those acquired during it.

The history of the asset and the circumstances of the marriage therefore become important when determining how an inheritance should be treated.

What Happens If Inherited Money Was Mixed With Marital Assets?

How an inheritance was handled during the marriage may also affect the analysis.

Suppose one spouse inherited $200,000 and kept the money in an investment account solely in that spouse’s name. That situation may be viewed differently from one in which the inherited money was deposited into a joint account and subsequently used to purchase a marital home, pay the mortgage, fund renovations, or cover other family expenses.

This type of mixing of separate and marital funds is often referred to as commingling. Although keeping an inheritance separate does not guarantee that it will be excluded from a Massachusetts property division, the manner in which the spouses treated the asset can be relevant.

Documentation can therefore become particularly important. Bank statements, investment records, probate documents, deeds, and other financial records may help establish when the inheritance was received, its original value, and what happened to the property afterward.

What Factors Does a Massachusetts Court Consider?

Massachusetts courts consider numerous statutory factors when determining an equitable division of property. These include the length of the marriage, the spouses’ ages and health, their occupations and income, vocational skills, liabilities and needs, and their respective opportunities to acquire future income and assets.

The court may also consider each spouse’s contribution to the acquisition, preservation, and appreciation of the marital estate, as well as contributions as a homemaker.

These factors help explain why there is no simple formula for inherited property. The treatment of a substantial inheritance in a short marriage may be very different from its treatment after a 30-year marriage in which the inheritance became intertwined with the family’s finances.

Equitable division also does not necessarily mean equal division. The objective is to reach a fair allocation based upon the circumstances of the particular marriage.

What If a Spouse Expects an Inheritance but Has Not Received It Yet?

An expected future inheritance presents a different issue. A person generally does not own property simply because a parent or another relative may leave that person an inheritance someday. Wills and estate plans can change, assets can be spent, and circumstances can change before the anticipated inheritance occurs.

However, Massachusetts law requires courts to consider each spouse’s opportunity for the future acquisition of capital assets and income. As a result, the possibility of a future inheritance may become relevant in certain divorce cases even though the anticipated property itself is not currently available for division.

Massachusetts courts have developed procedures for addressing this sensitive issue while recognizing the privacy interests of family members whose estate plans may be involved.

Can an Inheritance Be Protected During a Divorce?

There may be steps that help establish why inherited assets should remain with the spouse who received them. Maintaining inherited property separately, preserving records showing the source of the assets, and avoiding unnecessary commingling can make the history of the inheritance easier to demonstrate.

A valid prenuptial or postnuptial agreement may also address how inherited assets are to be treated if the marriage ends.

Once divorce becomes a possibility, spouses should be cautious about transferring, spending, retitling, or otherwise changing inherited assets without first obtaining legal advice. Actions taken shortly before or during a divorce can complicate property division and may have unintended consequences.

How Can a Massachusetts Family Law Attorney Help With an Inheritance During Divorce?

Inherited assets can create difficult property-division questions, especially when an inheritance is substantial, was received many years ago, has appreciated significantly, or has been combined with other marital property. Real estate, family trusts, investment accounts, closely held businesses, and anticipated inheritances can add additional complexity.

An experienced Massachusetts family law attorney can review how and when an inheritance was received, trace inherited funds, evaluate how the property was used during the marriage, and determine how Massachusetts equitable-distribution principles may apply. Anyone concerned about protecting an inheritance—or about an inheritance received by a spouse—should speak with a Massachusetts divorce attorney early in the process to understand how the asset could affect the overall division of property.