A party often wishes to retain inheritance funds specifically
bequeathed to one spouse. Ohio domestic relations courts allocate inheritance
funds by determining whether an inheritance can be regarded as separate
property. Commingling of the inheritance does not necessarily destroy its
identity, as the long as the inheritance is clearly identifiable and traceable.
Consider how the Ohio Revised Code characterizes separate
property:
Ohio Rev.
Code Ann. § 3105.171(A) provides in part:(3)(a) "Marital
property" means, subject to division (A)(3)(b) of this section, all of the
following:(i) All real and personal property that currently is owned by either
or both of the spouses, including but not limited to, the retirement benefits
of the spouses, and that was acquired by either or both of the spouses during
the marriage.(6)(a) "Separate property" means all real and personal
property and any interest in real or personal property that is found by the
court to be any of the following: (i) An inheritance by one spouse by bequest,
devise, or descent during the course of the marriage;(b) The commingling of
separate property with other property of any type does not destroy the identity
of the separate property as separate property, except when the separate
property is not traceable.
Example: Parties were divorced after a 36-year
marriage. Prior to the divorce, the husband
received an inheritance after his mother’s death. During the marriage, the inheritance
funds were placed in joint accounts and some of the funds were used to purchase
marital property. At trial no effort had been made to determine if the
inheritance funds had remained separately identifiable property. The wife
correctly contended that at least some of the funds had lost their character as separate
property when the funds were placed in joint
accounts and used for family purposes.
An appellate court may likely reverse the part of the trial court's judgment that declared the husband's inheritance to be separate property without attempting to trace the amount which was identifiably separate and remand for the trial court to determine if any of the inheritance had remained separate property.
Example: A wife failed to prove that inherited funds were her separate property. The funds lost their status as such, because they were co-mingled into the parties' joint bank accounts, and some of the funds were expended on business expenses, and others on marital expenses. Further, one of separate properties contained improvements, which were paid for with marital funds and separate funds. Said property was presumed to be marital property, and the wife failed to met her burden with testimony and documentation to trace the inheritance funds.
An appellate court may likely reverse the part of the trial court's judgment that declared the husband's inheritance to be separate property without attempting to trace the amount which was identifiably separate and remand for the trial court to determine if any of the inheritance had remained separate property.
Example: A wife failed to prove that inherited funds were her separate property. The funds lost their status as such, because they were co-mingled into the parties' joint bank accounts, and some of the funds were expended on business expenses, and others on marital expenses. Further, one of separate properties contained improvements, which were paid for with marital funds and separate funds. Said property was presumed to be marital property, and the wife failed to met her burden with testimony and documentation to trace the inheritance funds.
The two examples above are provided to
illustrate issues regarding whether property will be regarded as marital or
separate, and, how separate property must clearly identifiable and traceable.
The above information is not offered
as, and does not constitute, legal advice. The information presumes you are not
currently represented by an attorney who knows your specific circumstances.
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