How to Protect Your Kids’ Inheritance in a Divorce

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An inheritance is what your children might receive from someone after they pass away. It is a collection of their assets that can include cash, property, Investments, or items like jewelry and furniture. How an inheritance is divided will be based on whether or not there was a will created that defines the assets to be gifted.

Without a will, the estate goes through probate and is divided how the court sees fit. When a person dies with a will, the assets are allocated to the beneficiaries according to the instructions of the person who died.

Your minor child may receive an inheritance. If you are going through a divorce, there are ways you can protect those assets for your child so the child receives them when they reach the age of majority.

Those assets aren’t split between the adults during the divorce proceedings.

This requires planning, often before you even know a divorce may be imminent. You may also want to protect the inheritance you leave your child from your child’s spouse if you believe they may divorce.

If you have questions about how to protect an inheritance, contact the San Antonio family law attorneys at Higdon, Hardy & Zuflacht, L.L.P.. Our experienced and compassionate legal team can help answer your questions and advise you about the best ways to protect your children’s assets.

Is an Inheritance a Marital Asset?

Most people don’t expect their marriage to end in divorce. However, over time, people can change and one or both may find they are no longer compatible. After building your lives together, assets become entangled. This makes it difficult to figure out how they should be split fairly.

Some couples may have agreed to a prenuptial agreement before the marriage. This can help divide the marital property during a divorce. However, it’s difficult to anticipate whether your future children will receive an inheritance while creating a legal prenuptial document before you’re married.

Additionally, when your child gets married, they may not consider the need to protect a future inheritance from their spouse.

How the assets are used after they are inherited can help determine whether or not they become part of the marital assets. For example, if your minor child received a house as an inheritance and your family lives there together, it may be difficult to argue that the inheritance has not become a marital asset.

However, if your minor child receives cash, it is important to keep it separate from either of the parents’ accounts or their spouse’s account. This can help protect the asset in case of a divorce.

Protect Your Children’s Inheritance During a Divorce

Generally speaking, as long as the assets have not been commingled with other marital property, the court will see the inheritance as separate property. For example, if your child receives an inheritance check, do not deposit it into a joint bank account. This can convert the cash from separate property to marital property.

This is true if your child is married and deposits the check into a joint account with their spouse, or if you receive the check for a minor child and deposit it into a joint account with your spouse. This issue is often more pronounced when a parent believes their child could potentially divorce their spouse and lose the inheritance the parent wants to leave.

If you are concerned that your adult child may lose what you leave them in a divorce, you can take legal steps to protect the inheritance. For example, the property should be bequeathed only to your child and not to your child and their spouse. Your will should specify that the inheritance being left is only for your child. Additionally, you should counsel your child to maintain the assets as separate property from their marital assets. Mixing these assets can create confusion if your child divorces their spouse.

One popular way of protecting your child’s inheritance is to create a trust in your will that only names your child. By using a legal trust, you can ensure your child’s soon-to-be ex-spouse cannot lay claim to any assets you have left them after you die.

The same strategy can be used for non-marital children or those who are born outside of the current marriage. Otherwise, specifying a specific asset in your will to non-marital children will ensure that they inherit.

Protect Your Rights With an Experienced Texas Family Law Attorney

You and your children have rights under the law that you can legally protect.  The compassionate legal team at Higdon, Hardy & Zuflacht, L.L.P. has decades of experience helping families successfully navigate all areas of divorce and family law. Our team also provides estate planning and probate services.

We offer our clients personalized attention and help them overcome the overwhelmingly complex family law legal issues that have a profound effect on your and your children’s future. When you are faced with a family legal issue you want the experienced legal team from Higdon, Hardy & Zuflacht, L.L.P. on your side, protecting your rights.

Call our office today at (210) 349-9933 or contact us online to schedule a confidential consultation. We’ll listen to the details of your case and advise you on your next best steps.

Higdon, Hardy & Zuflacht, L.L.P. 12000 Huebner Rd #200 San Antonio, TX 78230 Telephone: (210) 349-9933 Fax: (210) 349-9988
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