16 Dec I found an account that wasn’t part of my divorce. What happens?
Q. I was divorced five years ago and we split up all our assets. I just learned that I inherited an annuity from my father, but he died seven years ago — before my divorce. Can I keep all the money?
A. Based on the facts you describe, the short answer is yes.
New Jersey is an “equitable distribution” state. In the event of divorce, marital assets and debts are divided in an equitable — fair — manner between spouses, said Thomas Roberto, a family law attorney with Adinolfi, Lieberman, Burick, Falkenstein, Roberto & Molotsky in Haddonfield.
He said in order to be considered “marital” in nature, and therefore subject to equitable distribution, the asset in question generally must have been acquired during the marriage. N.J.S.A. 2A:34-23(h) provides specifically for the “equitable distribution of… property, both real and personal, which was legally and beneficially acquired” by one or both spouses “during the marriage.”
“So, any assets — including but not limited to annuities — acquired by one spouse after the marriage would not be subject to distribution, and a former spouse would generally have no claim to any such assets acquired post-divorce,” he said.
Additionally, an inheritance is considered “separate property” and is excluded from equitable distribution even when it is received during the marriage, Roberto said.
N.J.S.A. 2A:34-23(h) specifically exempts from equitable distribution property received by one spouse via “gift, devise or intestate succession,” he said
“There are some exceptions to the rule exempting inheritance from equitable distribution; for example, if one spouse receives inherited funds and then `commingles’ those funds with a marital asset by depositing them into a bank account titled jointly with another spouse, they would lose their exempt status and be subject to equitable distribution,” he said.
So an asset acquired via inheritance years after the divorce is finalized should be considered the sole and separate property of the spouse who received it, Roberto said.
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This story was originally published on Dec. 16, 2020.
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