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  #1  
Old 02-14-2010, 02:13 PM
astro astro is offline
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In a divorce can one spouse lay claim to the potential inherited wealth of the other spouse?

Let's assume a scenario where you have a middle class couple with 2 teenaged kids. One spouse (let's say the man in this case) has extraordinarily wealthy 70 year old parents and stands to potentially inherit a vast fortune when they die. None of this potential is reflected in his adult lifestyle (or existing assets) which has been strictly middle class since he graduated from college.

Can his divorcing wife lay some kind of spousal claim on those potential monies?
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  #2  
Old 02-14-2010, 02:19 PM
Hakuna Matata Hakuna Matata is offline
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My understanding - It depends. In some states I believe that it gets divided regardless. In other states I believe the money has to be comingled before the spouse can lay claim to it. But this is only based on things I have read elsewhere and you probably should wait until someone with a more knowledgable background arrives.
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Old 02-14-2010, 02:23 PM
pravnik pravnik is offline
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In my state, she's not entitled to it even if they die during the marriage. An inheritance is separate property, like a gift. I believe that's the majority rule as well.

Why an inheritance is a 'yours,' not 'ours'
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Old 02-14-2010, 02:24 PM
MitzeKatze MitzeKatze is offline
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Inheritance is usually separate property (with a few exceptions) and since it is only a potential inheritance, it still may not even happen (parents could disown him, etc.) I wouldn't think there could be any claims to or division of it in a divorce case.

However, since you specifically mentioned teen-aged children, once the inheritance actually happens so that it is his wealth and not just potential wealth, that money might be included in any child support calculations, so the ex wife might see a portion of it as part of the child support- but again that would be only after he had the money, not while it is still in a "might get an inheritance or might not" stage.

And the usual disclaimers apply. I am not a lawyer, I could be wrong, and divorce laws vary by state so the above may not be correct in your hypothetical state.
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Old 02-14-2010, 02:26 PM
The Second Stone The Second Stone is offline
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I have a lawyer friend who got divorced and his wife did just this. (In California). The judge ruled in favor of the wife. The Court of Appeal reversed. The judge moonlighted as the local village idiot.

Last edited by The Second Stone; 02-14-2010 at 02:30 PM..
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Old 02-15-2010, 12:25 AM
dragonlady dragonlady is offline
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I agree with Second Stone. Last time I researched this was several years ago but, at the time the rule was that future possible wealth is not like laying claim to part of the spouses retirement account. Actual inherited wealth was only divisible if the money had been placed in joint accounts or co mingled in some fashion.
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Old 02-15-2010, 02:57 AM
Zoe Zoe is offline
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I believe I have read much the same as what Second Stone and dragonlady say.

One interesting thing happened to a woman I know. She was divorced and her husband got way behind in child support payments. After many years, when he was all set to inherit a tidy sum from an uncle, she tiptoed around the court system and called dibs on that check. He never knew what hit him.
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Old 02-15-2010, 03:01 AM
The Second Stone The Second Stone is offline
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I don't practice in this area, but my clear recollection of my classes a quarter century ago was that anticipated inheritances are not community property. I've read the case where my lawyer friend had his mother's anticipated bequest added to his community property. The judge made an error and the court of appeal reversed in part for this error, the decision of which I have also read. The judge was/is an idiot on a regular basis, but this is a very basic point of community property law that even an idiot should have got correct.
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Old 02-15-2010, 03:04 AM
The Second Stone The Second Stone is offline
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Quote:
Originally Posted by Zoe View Post
I believe I have read much the same as what Second Stone and dragonlady say.

One interesting thing happened to a woman I know. She was divorced and her husband got way behind in child support payments. After many years, when he was all set to inherit a tidy sum from an uncle, she tiptoed around the court system and called dibs on that check. He never knew what hit him.
Child support is very different than community property or spousal support. Money already owed can be collected from any source, including separate property. Community property cannot be calculated based on separate property, but child support can be.
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Old 02-15-2010, 08:13 AM
Fuzzy Dunlop Fuzzy Dunlop is offline
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Quote:
Originally Posted by The Second Stone View Post
I don't practice in this area, but my clear recollection of my classes a quarter century ago was that anticipated inheritances are not community property. I've read the case where my lawyer friend had his mother's anticipated bequest added to his community property. The judge made an error and the court of appeal reversed in part for this error, the decision of which I have also read. The judge was/is an idiot on a regular basis, but this is a very basic point of community property law that even an idiot should have got correct.
It's amazing to me that this question has gotten such nuanced answers, let alone that an actual judge ruled it should be community property. From a lay point of view it makes about as much sense as including anticipated winnings from the state lottery or anticipated earnings from the million dollar idea you anticipate one day thinking of. How would it even work? Would you have to subpoena the will and financial records of a party completely unrelated to the divorce?
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  #11  
Old 02-15-2010, 10:05 AM
kayaker kayaker is online now
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If a potential inheritance were able to be grabbed by an ex, couldn't the elderly parents just write Junior out of the will, with the understanding that another child would get it all. . .and then share it with Junior?
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Old 02-15-2010, 10:05 AM
Harriet the Spry Harriet the Spry is offline
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Quote:
Originally Posted by Fuzzy Dunlop View Post
It's amazing to me that this question has gotten such nuanced answers, let alone that an actual judge ruled it should be community property. From a lay point of view it makes about as much sense as including anticipated winnings from the state lottery or anticipated earnings from the million dollar idea you anticipate one day thinking of. How would it even work? Would you have to subpoena the will and financial records of a party completely unrelated to the divorce?
Well, one difference is that the wealth actually exists at the present time and is in some way linked to the potential recipient, either through a will or the inheritance laws that would apply in absence of a will.

Although the OP specifies that this wealth is not influencing the current lifestyle at all, in real life it is likely to be different. In particular, I could see it leading to the couple deciding that the woman should stay home with kids, because she would not need to save for her own retirement or maintain her ability to earn a decent living. That's the kind of decision that sounds great if the marriage lasts and they raise two adorable kids with every advantage and retire to a life of leisure and travel. If the marriage ends, all of a sudden she probably has custody of the kids, no retirement savings, and stale job market skills. She does get the shaft in that situation.

So while the decision not to include the inheritance is logical, it may not always be just if you consider a lifecycle perspective on income and wealth.
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  #13  
Old 02-15-2010, 10:09 AM
Caffeine.addict Caffeine.addict is offline
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Quote:
Originally Posted by kayaker View Post
If a potential inheritance were able to be grabbed by an ex, couldn't the elderly parents just write Junior out of the will, with the understanding that another child would get it all. . .and then share it with Junior?
That is probably one of the practical reasons why the courts generally have held it to be separate property. If the parents are still alive, then they can easily change their estate planning so that the son and therefore the ex-wife doesn't get a cent of it. They could also put the money in trust so that junior only gets income or even hold the money until the kids are old enough that dad wouldn't have to pay child support.
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