Is Inherited Property Marital in Illinois Divorce?
When a marriage ends, one of the most important questions I hear from clients in Schaumburg is, “Will my inheritance be divided in the divorce?” This concern is understandable. You worked hard to protect what your parents or grandparents left you, and the idea of losing part of that inheritance during divorce can feel unfair. Under Illinois law, however, the answer depends on several key factors—most importantly, whether the inheritance has remained separate or has been mixed, or “commingled,” with marital assets.
As adivorce lawyer in Schaumburg, I frequently explain to clients that Illinois follows an equitable distribution model under 750 ILCS 5/503, which is part of the Illinois Marriage and Dissolution of Marriage Act. This means that the court divides marital property fairly, though not necessarily equally. Inheritances can be protected from division—but only when the proper steps have been taken to keep them separate and traceable.
Understanding Marital Property Under Illinois Law
Under 750 ILCS 5/503(a), marital property generally includes all property acquired by either spouse during the marriage, except for certain categories specifically excluded by law. Those exceptions include:
- Property acquired by gift or inheritance
- Property acquired in exchange for non-marital property
- Property excluded by a valid prenuptial or postnuptial agreement
- Property acquired after a judgment of legal separation
Inheritances fall under the “non-marital property” exception. However, what begins as non-marital property can quickly lose that status if it becomes intertwined with marital finances. For instance, depositing inherited funds into a joint bank account or using inherited money to pay for a jointly owned home can result in the inheritance being treated as marital property.
Commingling: How Separate Property Can Become Marital
Illinois courts pay close attention to commingling—the mixing of separate and marital assets. According to 750 ILCS 5/503(c)(1), if non-marital property is combined with marital property in such a way that it cannot be distinguished, the resulting asset may be considered marital.
For example, if you inherit $50,000 and deposit it into a joint checking account that you and your spouse both use for bills, that inheritance may lose its separate character. Similarly, suppose you use inherited funds to renovate the marital home. In that case, that contribution might be viewed as enhancing a marital asset—meaning your spouse could have a claim to part of its value.
However, if the inheritance can be traced—that is, clearly identified as separate and distinct from marital funds—it can remain non-marital property. Maintaining separate accounts and keeping clear documentation is crucial for protecting inherited assets during a divorce.
Tracing and the Importance of Documentation
When I represent clients in Schaumburg divorce cases involving inherited property, I often tell them that “paperwork can make or break your case.” Courts require clear evidence showing that inherited property has not been commingled. This is where tracing comes in.
If you can show a clear paper trail—from the original inheritance deposit to its current location—the court can classify that property as non-marital. For example, maintaining a separate savings account solely for inherited funds or keeping a property deed in your individual name can be decisive.
Under 750 ILCS 5/503(c)(2), if marital property is used to improve or maintain non-marital property, the contributing spouse may receive reimbursement. This means that even if your spouse doesn’t gain ownership of your inherited property, they might claim a financial interest based on marital contributions.
When Inherited Property Can Become Subject to Division
In some cases, even inherited property can become partially marital if it has been treated as part of the marriage. Here are a few examples:
- Using inheritance to buy a marital home: If both spouses are listed on the title, the property may be marital.
- Paying off marital debts with inheritance: This can give the other spouse an argument for reimbursement or partial ownership.
- Titling inherited assets jointly: If you add your spouse’s name to an inherited bank account, the law typically views this as a gift to the marriage.
Courts look at the intent of the parties and the use of the funds. If you intended to share the inheritance or used it in a way that benefited both spouses, it’s more likely to be treated as marital.
Protecting Inherited Property During Divorce
If you are concerned about losing an inheritance, there are steps you can take both before and during the divorce process:
- Keep inherited assets separate. Avoid depositing them into joint accounts.
- Document all transactions. Maintain records of deposits, statements, and uses of funds.
- Avoid using inherited property for marital expenses. Doing so could alter its classification.
- Consult an attorney early. Legal guidance ensures that property tracing and classification are handled properly, preventing issues from arising in court.
As an attorney who regularly represents clients in Schaumburg and throughout Cook County, I’ve seen how careful planning and documentation can prevent unnecessary disputes and protect what rightfully belongs to my clients.
Why Legal Guidance Matters
Divorce law in Illinois is highly fact-specific. Courts weigh evidence, behavior, and intent in every property classification dispute. Even a simple mistake, such as depositing inherited funds into a shared account, can significantly impact the outcome.
An experienced Illinois divorce lawyer can help prepare the necessary financial evidence, explain your rights under 750 ILCS 5/503, and argue for your interests during negotiation or trial. Whether your case involves real estate, investment accounts, or family heirlooms, strategic preparation is the key to ensuring your inheritance stays protected.
Inherited Property And Divorce In Illinois FAQs
Can My Spouse Claim My Inheritance In A Divorce?
Generally, no. Inheritances are classified as non-marital property under 750 ILCS 5/503(a)(1). However, if you’ve mixed your inheritance with marital assets or used it for joint purposes, the court may consider all or part of it marital property. Keeping it separate is crucial to protecting your rights.
What If I Used My Inheritance To Pay Off The Mortgage On Our Marital Home?
When inherited funds are used to benefit a marital asset, Illinois law may allow your spouse to seek reimbursement or an equitable interest in the property’s increased value. You may still retain ownership of the inherited funds’ traceable value, but proving that trace can be challenging without detailed records.
Can I Protect My Inheritance With A Prenuptial Or Postnuptial Agreement?
Yes. Illinois law recognizes valid prenuptial and postnuptial agreements under 750 ILCS 10/7. These agreements can specifically exclude inheritances or future gifts from marital property, offering an added layer of protection.
What If My Inheritance Was In A Joint Bank Account With My Spouse?
Depositing inherited money into a joint account typically shows intent to treat it as marital property. Even if you later transfer it to your name alone, it may be too late to reverse that classification. Courts often view this act as a gift to the marriage unless you can clearly prove otherwise.
Can The Court Divide My Inherited Property If I Never Commingled It?
If the inheritance remained separate and can be clearly traced to you alone, the court cannot divide it. However, the court may consider your inheritance when deciding on maintenance (spousal support) or the overall fairness of property division, as Illinois courts examine the total financial picture.
How Can I Prove That My Inheritance Is Non-Marital Property?
You can establish this by providing documents showing the inheritance source—such as a will, estate distribution letter, or bank transfer statement—and demonstrating that the funds remained separate. Your attorney can help you prepare the documentation and testimony needed to protect those assets in court.
Can My Spouse Get A Share Of Property I Inherited Before The Marriage?
If the property was inherited before marriage and kept separate throughout the marriage, it remains non-marital. However, if it was improved or maintained with marital funds during the marriage, your spouse might have a claim for reimbursement for their share of those marital contributions.
What Happens If I Can’t Prove The Source Of My Inheritance?
If the court cannot trace your inheritance or determine whether it was kept separate, it may presume that the property is marital. That’s why maintaining detailed records—bank statements, property deeds, and estate documentation—is essential in every case.
Call The Law Office Of Fedor Kozlov
If you are facing divorce and are concerned about protecting your inheritance, I can help. At the Law Office of Fedor Kozlov, I handle complex divorce and property division matters for clients across Schaumburg and the greater Chicago area. Every client deserves a clear explanation of their rights and a strategy tailored to protect what matters most.
Contact our Chicago divorce attorney at the Law Office of Fedor by calling (847) 241-1299 to schedule a consultation. The Law Office of Fedor Kozlov proudly represents clients in Schaumburg, Cook County, and throughout Illinois in all areas of family and divorce law.
