Inheritance Property & Divorce in Georgia

Women Signing Paper Edited By: Belinda Martin – Associate Attorney

Inheritance property is property that was inherited by someone when a loved one passes away, and passes the property down to them. The property does not have to be real property, such as real estate. It can also be funds, stocks, personal property, and other items of value.

General inherited property laws cover real property, but they also cover many other inherited items. When someone is planning to divorce, and they have inherited property, there can be questions and concerns about how that property will be treated. An attorney can help sort through the issues, to protect inherited property and develop a fair division of assets.

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How to Classify Inheritance: Separate vs. Marital Property

The main difference between separate and marital property is that separate property belongs solely to one spouse, while marital property belongs to both spouses. The separate property is usually property that was acquired prior to the marriage, while the marital property was acquired during the marriage.

However, there can be exceptions to this rule, especially with issues regarding inheritance and divorce. Most inherited property will be considered separate, but there are gray areas where it can be hard to determine whether inherited property is separate or marital in nature.

Additionally, if the spouse who inherits property gives gifts from that property to the other spouse, or uses it in specific ways that benefit the marriage and the couple, that can complicate the issue of how that property should be considered. In those types of scenarios, the property inheritance laws Georgia has in place are not as clear-cut.

Is It Possible for Property to Be Both Separate and Marital Property?

There are some circumstances where it can be very difficult to determine whether property is separate or marital. Inherited property laws do have gray areas, and those areas have to be handled carefully where inheritance and divorce is concerned.

One spouse inheriting a lot of money, for example, and using it to fix up the house that’s jointly owned by the spouses, could create difficulties during a divorce. Issues of who gets the house, and whether the non-inheriting spouse should “pay back” any money used if they keep the house, is just one of the questions that could arise during a contentious divorce proceeding.

If the right conditions are met, property that would typically have been considered separate could become marital property. However, this is not the case for most property that is considered separate, as long as it is kept separate and not commingled in ways that would indicate the full sharing of that property by both spouses.

How is Marital Property Divided in Georgia?

It is entirely possible for divorcing spouses to agree on how they want to divide their property. If both spouses agree to the property division, and put it in writing as part of their divorce paperwork, it will generally be approved without any required changes. But not every couple is able to do that.

For those couples that cannot come to an agreement, marital property is divided according to specific laws. Some factors the courts look at when they are determining a fair division of property include:

  • The financial status of each spouse, along with their separate property and assets
  • Whether one spouse will be paying the other spouse alimony
  • The conduct of the spouses toward one another during their marriage
  • The earning capacity and current income of each spouse
  • Whether each spouse has any kind of future protection, such as retirement savings
  • The debts each spouse has
  • Whether one spouse wasted a significant level of assets through poor conduct

With all those factors taken into account, the court is able to make a fair and equitable division of marital property. Keep in mind that does not mean a 50/50 split. It means making sure the financial standing and future security of the spouses is as similar as reasonably possible under the law.

Who Keeps the House In a Divorce?

If there are children from the marriage, the spouse who will have primary physical custody of those children may have an advantage when it comes to keeping the house. In that case, though, other valuable marital property may go to the noncustodial spouse, to help keep things in balance. An attorney can help spouses sort that out more fully.

Learn More About Georgia Property Laws at Stearns-Montgomery & Proctor

If you need help navigating Georgia inheritance law, marital property law, or separate property law, and how they factor into Georgia divorce cases, don’t hesitate to contact our team today. We’ll help you get the representation you deserve.