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Protecting Your Inheritance in Divorce

Assets at risk of division in Massachusetts

Inheritances received prior to marriage are subject to asset division in Massachusetts divorces even though they are “non-marital” property that does not arise during the marriage partnership. Massachusetts law even permits courts to assign one spouse’s inheritance to the other spouse in addition to alimony. Courts also have the ability to return inheritances to the inheriting spouse, however, based on certain factors such as the length of marriage, length of prior cohabitation and the standard of living to which the spouses are accustomed.

Timing of inheritance

Whether an inheritance is subject to asset division also depends on whether as of the time of the divorce the heir has received the inheritance or has a “vested” right to receive the inheritance. For example, a spouse might have the right to inherit assets as a beneficiary of a will of a deceased family member; even if that spouse has not yet received the inheritance at the time of the divorce, the inheritance is subject to asset division.

If the maker of a will has not yet deceased, however, then the inheritance is considered “speculative” or an “expectancy” and is not subject to asset division. Whether or not an inheritance is speculative or an expectancy may also depend on the nature of the estate created by a deceased family member’s will. In one Massachusetts case, for example, the deceased father of a divorcing spouse left that spouse an inheritance that was subject to a life estate of the spouse’s mother. In that divorce, the court held that the inheritance was subject to asset division even though the inheriting spouse would not receive the inheritance until after the mother’s death.

Timing of divorce

The timing of the stages of divorce actions can further complicate asset division of inheritances. For example, one Massachusetts court denied the division of an inheritance when the inheriting spouse’s right was not vested prior to the divorce but had vested prior to a later post-divorce modification and property assignment action.

Engage sophisticated counsel

Where inheritances are at stake in divorce proceedings, the nuances of Massachusetts divorce law should be navigated by sophisticated counsel with experience. Divorcing spouses should not assume that inheritances are safe from or available for asset division. Timing can be a significant factor, so divorcing spouses seeking protection from or access to asset division of inheritance should obtain legal representation right away.

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Attorney John J. Martino offers a broad range of legal services in Eastern MA and Southern NH. As a highly dedicated and experienced professional, he handles cases under the following areas of practice:

Estate Planning

Family Law and Divorce

Real Estate Law

Probate Proceedings

Business Law

Personal Injury

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