Washington, DC asked in Divorce, Real Estate Law and Estate Planning for Virginia

Q: My spouse&I live in a house owned by my dad. I will inherit when he passes. Would it become a marital asset in divorce?

1 Lawyer Answer
James H. Wilson Jr.
James H. Wilson Jr.
  • Estate Planning Lawyer
  • Glen Allen, VA
  • Licensed in Virginia

A: Property that is acquired by gift or inheritance during a marriage in Virginia starts as separate property in equitable distribution. This is an exception to the general rule that property acquired during the marriage and before the last date of separation is presumed to be marital property, no matter how it is titled. A spouse can retain the classification of separate property by treating it as such and not devoting substantial efforts to increasing its value. Separate property can be transmuted into hybrid property - a mix of separate and marital - or marital property , if it is not treated as separate property. One example of transmutation would be the mingling of separate funds and marital funds, and its use for family or marital purposes. Evidence in favor of this transmutation may be the retitling of real property from one spouse's name to their joint names, if done for a refinance or other marital property. Another example would be the improvement in value of the property due to the significant efforts of either spouse. Another example would be using marital funds to increase the value of the property, causing a part of it to become marital. This often happens with the marital residence when the spouses pay down the mortgage with marital funds - income earned while they are married.

Anyone who wishes to preserve the separate classification of inherited property should consult with an experienced Virginia divorce lawyer to discuss his or her options and the best course of action.

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