12 Jan I think my son’s marriage could end. What about inheritances?

Q. I’m planning for my estate and my son is in a marriage that I don’t think will last. They don’t have a lot of assets as a couple and my son will inherit my IRA, worth about $1.5 million now, when I’m gone. If they split after I die, what happens to the inherited IRA?
— Planning

A. We’re sorry to hear you don’t have a lot of confidence in your son’s marriage.

But we are glad you want to plan for your estate.

New Jersey is an “equitable distribution” state, meaning marital property is divided in an equitable — meaning fair — manner between spouses at the time of divorce, said Thomas Roberto, a family law attorney with Adinolfi, Roberto, Burick & Molotsky in Mount Laurel.

He said property acquired during the marriage is generally considered to be marital in nature and therefore subject to equitable distribution.

There are exceptions, however, including in cases where one spouse receives inherited property during the marriage, he said.

“Property inherited by one spouse is generally considered exempt from distribution at the time of divorce provided the property was not commingled, or mixed, with marital property during the marriage,” Roberto said

If the inheritance is maintained in the name of the receiving spouse and is never placed in a jointly titled account — or in the case of real estate a deed in the name of both spouses — transferred to the name of the other spouse, or otherwise commingled it would be immune from equitable distribution, he said.

“If the inheritance is commingled during the divorce, it would lose its exempt status and be subject to division in the event of divorce,” he said. “The concept of commingling can be fact-specific and depend upon the details of each case.”

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This story was originally published in January 2024.

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