Is My Spouse Entitled To My Family Inheritance In A Divorce?

November 19, 2022 O'Connor Family Law Divorce

In many states, the law draws a line between marital property and separate property when it comes to property division during divorce. Massachusetts is not one of those states. In Massachusetts, almost all the property owned by a couple—individually or together—is thrown into the pot when it comes to dividing things up during a divorce.

That doesn’t mean your spouse automatically gets all or even some of any inheritance you might have received or will receive in the future. It does mean, however, that your inheritance will be considered by the courts as potential property to divide.


It may seem logical and practical that assets you inherited during your marriage would become part of the marital pot and potentially be divided between you and your spouse during a divorce. However, it may seem less logical that assets you inherited before you got married would be seen in the same light.

In Massachusetts, anything you own—regardless of whether you brought it into the marriage or acquired it during the marriage—can be considered during equitable distribution. This doesn’t mean that the assets will definitely be divided up, but they do have to be placed on the metaphorical table for consideration. The best way to protect any assets you desire to retain an individual character and not be considered if the marriage takes a turn downhill is to enter into a prenup before you get married.


Even more surprising to many people is the fact that the potential for a future inheritance must also be considered in a divorce in Massachusetts. If there’s a chance that one of the individuals may inherit a substantial amount in future income or assets, the other spouse may have a right to some of that future value.

It’s not unusual for a couple to have relied upon their belief that they would inherit good ol’ Auntie Bessie’s small fortune. Perhaps because of this belief, they did not put money aside toward their retirement plans. This is one example where a future inheritance may be considered within a divorce. However, Aunt Bessie’s estate planning is going to factor in. And, the person not actually related to Aunt Bessie will have the burden of getting information that could substantiate that spouse’s position.

Relatives, such as Aunt Bessie – grandparents, aunts, uncles, parents – may not be willing to provide exact details of their financial situations and estate plans. To allow a divorcing spouse to seek information to support the most equitable division of property while also protecting the privacy of others, the courts allow a Vaughan Affidavit. This is a document that provides some general information about future inheritances so that the court can make informed rulings on property divisions.


Simply because property is on the table in a divorce proceeding doesn’t mean it gets divided equally between spouses. 

Massachusetts family law courts follow equitable distribution. If a divorcing couple can’t come to an agreement on their own about the division of property, the court will seek as fair a division as possible given a wide range of factors. It’s important to remember that quitable does not mean equal though, even if there’s typically a presumption that there is an equal split of marital property.

When it comes to inherited property and whether to divide it between spouses, courts may consider factors such as:

  • When the property was inherited. Property that was inherited before the marriage or after divorce proceedings began may be put aside by the court and not included in the assets that are divided in some cases. The same is true if the inheritance was received right before or after you or your spouse filed for divorce. Property that was inherited during the marriage is more likely to be considered marital during an equitable distribution decision, though some other factors are important in the final outcome.
  • Whether the property was commingled. If property was never commingled, you have a greater chance of keeping it. For example, if you inherited $50,000 before you got married, kept it in a separate account in your individual name, and never used the money to pay anything during the marriage, you may have a case for keeping all of it. The same could be true even if you inherited the money during your marriage. (Tip: If you’re inheriting money, always talk to a lawyer about the best way to protect it.)
  • What impact the property had on marital finances. If an inheritance played a role in marital finances or the support of your spouse in any way, it’s more likely to be considered in the division of property. For example, if you inherit a vehicle and you both drove it regularly to get to work, it’s probably going to be considered as property to be equitably distributed. Similar situation if one of you inherits a home.


You probably noticed that there are no outright answers above. Massachusetts law is complex on this topic and doesn’t have a lot of black-and-white rules for how marital property is divided. Assets you had before your marriage, for example, may or may not be divided between you and your spouse, depending on a variety of factors, some of which we went over. As stated before, the best way to protect assets within a divorce is to get a prenup prior to the marriage, but if you’re looking at getting divorced now and you did not enter into a prenup, then obviously, there’s no going back to change that fact. 

That’s why it can be important to work with a divorce lawyer. Even if you believe you’re entering into an amicable divorce, having a professional on your side to educate you so you know how to protect your interests and provide guidance about your options and what to expect throughout the process can make a positive difference.

For more information about how a family law attorney can help during your divorce, contact O’Connor Family Law today.