If you are getting divorced in North Carolina, the answer is no, generally not. Property inherited by one spouse before or during the marriage is considered separate property, not marital property. Only marital property is divided in a North Carolina divorce.
Furthermore, unlike in some states, North Carolina doesn’t consider income from an inherited property or the increase in the property’s value during the marriage to be marital property. These are still separate property.
Additionally, if you exchange your inheritance for another asset, that asset is generally considered separate property. Therefore, it is important to keep good records of how you spend your inheritance.
What could make an inheritance divisible in a North Carolina divorce?
There are three instances in which an inheritance might be divided in a divorce:
- The inheritance was left to you as a couple
- You comingled your inheritance with marital property in a way that makes it fair to divide it
- Your prenuptial or postnuptial agreement specifies that it will be divided
Otherwise, North Carolina law defines separate property as “all real and personal property acquired by a spouse before marriage or acquired by a spouse by devise, descent, or gift during the course of the marriage.” The words “devise” and “descent” are used to include inheritances whether or not they were passed by a will.
Separate property is not divided at all in North Carolina
There are two basic steps in dividing property in a North Carolina divorce: classification and division. Classification means determining whether each piece of property is separate or marital. If it is separate, it is not divided.
Generally, the law assumes that any property you obtain during the marriage is marital property, except when you received it by devise, descent or gift, or in certain other limited circumstances.
Marital property is to be divided equitably, which means fairly. Our courts start with the presumption that each spouse should receive half of the marital property unless such a division would not be equitable.
If you negotiate a divorce settlement, you can decide for yourselves what is fair when you divide the marital property, unless you have a prenuptial agreement or postnuptial agreement that covers the division of marital property.
If you are considering divorce and you have significant personal property, are the beneficiary of a trust, or have received an inheritance or substantial gift, you will need to ensure that your assets are classified as separate. Be sure to work with a compassionate attorney who will go the extra mile to help.
