How to Protect Inheritance in a Kansas Divorce
By Heather Frances J.D.
In your divorce, the Kansas court will divide property between you and your spouse according to the Kansas statutes. Though the court should consider the whole picture of your assets and marriage in making its property division, the court has broad discretion when making its decisions, even regarding the division of inheritances. Consequently, you may wish to consult an attorney regarding the best way to protect your particular inheritance assets in your divorce.
Separate and Marital Property
During your marriage, Kansas categorizes your property as either marital property or separate property. Marital property is everything acquired during your marriage by either spouse, except for items considered to be separate property, such as property owned before the marriage and property acquired by gift or inheritance. During the marriage, one spouse’s separate property cannot be sold by the other spouse, and it cannot be used to satisfy the other spouse’s debts.
Property in Divorce
Once you or your spouse files for divorce, all of your property and all of your spouse’s property become eligible for division by a Kansas court. This applies to all marital and separate property, including property you inherited. So your inherited property, while still considered separate, is no longer automatically protected, though courts often treat inheritances differently from other property.
Division of Property
The court’s role is to divide property in a fair, just and equitable manner, though this does not necessarily mean the division will be equal. In a divorce, the court will often award an inheritance to the inheriting spouse, but it is not required to do so. To reach its decision on property division, the court may consider many factors such as the age of the spouses, the length of the marriage, the types of property, how the property was acquired and the earning potential of each spouse. For example, if your inheritance came from someone with whom you had a close relationship, the court is more likely to set that inheritance aside to be given back to you in the divorce rather than awarding some of it to your spouse.
Kansas courts also have authority to award spousal support, called maintenance, to a spouse in the divorce decree. As with property division, the court will award an amount it finds to be fair, just and equitable, and it will consider many factors before reaching its decision. The court may consider your inheritance when making its decision about maintenance, including whether maintenance is justified based on how much value your inheritance contributed to the property division. For example, the court may decide that your inheritance money contributed so much to the value of the property that your spouse is receiving in the divorce decree that you are not required to pay maintenance to your spouse.
If you have commingled your inheritance with your marital assets, the court may find that your inheritance is indistinguishable from your martial property, making it difficult for the court to award that inheritance to you in the divorce. For example, if you receive money as an inheritance, then deposit it in the family checking account and spend it on marital expenses, the court will likely determine it cannot later be divided in the divorce since it was commingled and spent. In contrast, if you inherit money but keep it in a separate account and do not spend it on marital expenses, the court may award that money to you since it was not mixed with the marital property and can still be traced back to its origin.
Heather Frances has been writing professionally since 2005. Her work has been published in law reviews, local newspapers and online. Frances holds a Bachelor of Arts in social studies education from the University of Wyoming and a Juris Doctor from Baylor University Law School.