If you’re going through a divorce in South Carolina and have received an inheritance, you’re likely wondering: will I be able to keep it? The answer largely depends on how that inheritance has been handled during your marriage and whether steps were taken to keep it separate from marital assets.
South Carolina is not a community property state. That means the division of property during divorce proceedings follows the principle of equitable distribution. The goal is to divide the marital estate fairly, though not necessarily equally. However, not all property is treated the same. Inherited assets often fall into a separate category—one that may be protected from being divided.
Are Inheritances Considered Marital Property?
Under South Carolina divorce laws, inherited assets are generally considered separate property, not marital property. This means that inherited funds or inherited property that you received individually—before or during the marriage—may remain yours in the event of a divorce, as long as the inheritance remains separate.
That said, not all inheritances are automatically excluded from the marital estate. If inherited money, property, or other assets were commingled with marital funds or used to pay joint expenses, the inheritance may be considered marital property and subject to equitable division.
For example, depositing inherited money into a joint account shared with your spouse or using inherited assets to improve the marital home could complicate matters. In these cases, it becomes difficult to argue that the inheritance remains separate, and your spouse may have a valid claim to a portion of those assets.
How to Protect an Inheritance During Divorce Proceedings
If you want to keep your inheritance separate and protected during the divorce process, there are several proactive steps you can take. First and foremost, avoid commingling funds. Keeping inherited assets in a separate account that only you can access is critical. Using those funds to pay for joint expenses or contribute to jointly owned property could weaken your claim that the inheritance is yours alone.
Second, maintain detailed records. Keeping documentation of when the inheritance was received, how it has been used, and where it has been stored will support your case if a dispute arises during the property division process. Courts look closely at how assets acquired during the marriage were treated when deciding whether they are part of the marital estate.
Third, consider using a prenuptial or postnuptial agreement. These legal tools are effective in defining what is considered separate property versus marital property. A well-crafted postnuptial agreement, in particular, can clarify the status of an inheritance received during the marriage and prevent future legal issues should divorce occur.
Equitable Distribution and Inheritance
Equitable distribution in South Carolina means that the family court will divide marital property in a way that is fair to both parties, considering a number of statutory factors. These include the length of the marriage, each spouse’s economic circumstances, contributions to the marital estate, and more. While marital property includes assets acquired during the marriage, inherited property is typically excluded—provided it wasn’t commingled.
Property division becomes more complex in longer marriages or where inherited funds have been used for marital expenses or to acquire jointly owned homes. The court may determine that all or a portion of the inherited assets have become marital through commingling. For example, if a spouse uses inherited funds to pay down the mortgage on the marital home, the court may treat those funds as part of the marital estate.
Inheritance and Prenuptial/Postnuptial Agreements
A prenuptial or postnuptial agreement can be a powerful tool for protecting inherited property. These agreements allow couples to define how separate property, including inheritance, will be handled in the event of a divorce.
If you entered the marriage with inherited property, a prenuptial agreement could clearly state that it will remain separate. Similarly, if you receive an inheritance after marriage, a postnuptial agreement can clarify that the inherited funds or property are to be excluded from the marital estate—even if you use those assets during the marriage.
Without such agreements, your spouse could claim an interest in inherited funds if they were used for joint purposes or deposited into a joint account. That’s why many family law professionals recommend couples revisit financial planning when major events—like receiving an inheritance—occur.
When Inheritance Becomes Marital Property
Despite best efforts, certain situations may lead inherited property to become part of the marital estate. These include:
- Using inherited money to pay for marital debts or ongoing household expenses
- Depositing inherited funds into a joint account
- Using inherited property as the family home or for shared benefit
- Failing to document the origin or use of the inheritance
In such cases, the family court may find that the inheritance has been converted into marital property, making it subject to equitable distribution during divorce.
Working with a Knowledgeable Attorney
A knowledgeable attorney can help ensure that your inheritance is properly classified and protected. They can guide you through the nuances of South Carolina law and help you avoid common pitfalls such as commingling funds or using inherited assets in ways that jeopardize your separate claim.
Whether you’re in the early stages of divorce proceedings or are preparing for property division in court, legal counsel is essential to protect your financial interests. An attorney can also advise on the use of postnuptial agreements, handle disputes over joint accounts, and ensure that inherited assets remain separate.
Learn more about protecting your inheritance during divorce in South Carolina. Call Sarah Henry Law at (864) 478-8324 to schedule your free, no-obligation consultation. You can also reach us anytime through our contact page. Let us help you take the first step toward resolution and peace of mind.
FAQs: Inheritance and Divorce in South Carolina
Is inheritance considered marital property in South Carolina?
Not usually. Inheritance is generally considered separate property unless it has been commingled with marital funds or used for joint purposes.
How can I keep my inheritance separate during divorce?
Keep inherited funds in a separate account, maintain detailed records, and avoid using the inheritance for marital expenses. A prenuptial or postnuptial agreement also helps.
What happens if I use my inheritance to pay for the family home?
Using inherited funds on the marital home could cause those assets to be treated as marital property, especially if the home is jointly owned.
Will my spouse get half of my inheritance?
Not necessarily. South Carolina uses equitable distribution—not equal division—so inherited property may remain yours if properly maintained as separate.
Can a prenuptial or postnuptial agreement protect my inheritance?
Yes. These agreements can specifically state that any inherited property remains separate, even if received during the marriage.
