In Wisconsin, inheritance is considered separate property even if it was received during the marriage. This means the inheritance is non-marital property and will not be split in a divorce. However, it can be subject to division if the inheritance was commingled and became community property.
Inherited property often doesn’t have to be split in a Wisconsin divorce. However, the person who wants to keep that inheritance is the one who has to prove it is exempt from division. This happens during the property division section of a divorce.
Inherited property can come in many forms: cash, personal property, real property such as homes and land, or even ownership of a business. To keep an inheritance separate, the owner must be very careful about how they deal with it before and after receiving it. The owner’s action, or inaction, can cause inherited property to be subject to division in a divorce.
When someone receives an inheritance, it is separate property, meaning it is owned by only one person even if that person is married.
Inherited property is exempt from property division during a divorce if it is not turned into shared property. Whether the court views it as separate or shared property hinges on what the owning party does with the inherited property. This seems like a simple question, but it is not. It is a very complex analysis with many subsequent questions to answer. Courts will review the intent of the owning party when they received the property and their intent if that inheritance is ever used.
Separate property can become shared property (or marital property) in a variety of ways. Broadly speaking, if the inherited property is never mixed with marital property or added to with marital funds, it is usually exempt from division upon divorce.
When there has been a mixing of the property, the court looks to whether there was donative intent. One way the court will find donative intent is if the person who received the inheritance ever clearly said that the inheritance was meant to be shared. Another way is if the inheritance was shared with the other party in some way.
An inheritance can become marital property if it is commingled. Commingling is when a piece of separate property is in some way shared with the spouse or mixed with marital assets.
This can happen in a variety of different ways including:
This comingling, or mixing, of inherited funds and marital funds can change the inherited funds from the owning party’s own asset into a martial asset. All marital assets can be subject to division in a divorce.
Commingling can happen to an inherited residence in ways that don’t always make sense at first. A residence is easy to commingle because if marital funds are used to improve or upkeep the residence, that is evidence of commingling. Courts have ruled that although the property was inherited and individually owned, it was turned into marital property by using marital funds to add to or change the inherited property. A residence can also be commingled if it is used as the marital home.
It is vital to have an attorney that is well versed in the complex analysis of separate versus shared property. Your attorney must go in depth and review the specific circumstances present and craft arguments with existing evidence.
An experienced attorney will have the knowledge to create a convincing argument using the evidence surrounding the inheritance in your case. Whether you are protecting an inheritance or arguing an inheritance should be split, an family law attorney will be able to fight for you.
