If my 40 year old son will receive money from my mother’s Trust when she dies, how can he best protect his inheritance in case of a divorce?

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If my 40 year old son will receive money from my mother’s Trust when she dies, how can he best protect his inheritance in case of a divorce?

He has been in a loveless marriage for 18 years; they have 2 children. He lives in a community property state.

Asked on April 29, 2015 under Estate Planning, Washington

Answers:

SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 6 years ago | Contributor

An inheritance should remain separate property (i.e. only his), even in a community property state. Howver, there is a risk in that if the inheritance is commingled or mixed with community funds--for example, put into their regular joint bank account so that it's impossible to tell the exact source of funds/payments made from that account; used to buy property, furniture, vehicles, etc. used by both spouses; etc.--then a court could conclude that the inheritance has lost its separate nature and has become community property. At a minimum, therefore, he should segregate the inheritence when he receives it: put it into a separate account (or brokerage account or other investment vehicle) which his wife's name is not on, not use it for any joint or marital expenses, etc. He should also consider whether he--and the children--would be better off with a divorce than having him (the children's father) in what is probably an obviously loveless marriage.


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