Around the table blog

Around the Table

Levitt Family Law & Mediation’s Blog

Inheritances and Divorce

by | Jan 19, 2024 | Divorce

Inheritances are one of the most difficult topics in divorce about which to reach agreement. Inheritances involve a myriad of emotions – a sense of legacy, loyalty to one’s family, considerations of the needs of one’s parents or other extended family members to access inherited wealth for their own care and comfort, the feeling that the other spouse does not “deserve” to share, what contributions if any the non-inheriting spouse made to the family that suggests they should share in some manner, and fear and anxiety about retirement and old age. Parties can sometimes be caught in the middle between their spouse and extended family.

Unlike some states where inheritances are excluded as marital assets, in Massachusetts inheritances are not necessarily excluded from consideration when determining what is a marital asset and how those assets will be divided. Massachusetts law distinguishes between types of inheritances, those that are “mere expectancies” and those that constitute “vested interests.” Mere expectancies refer to interests that are remote or speculative and cannot be divided in divorce; vested interests are more fixed and enforceable property rights which can be divided as a marital asset. However, a court can consider a mere expectancy even if it can’t be divided.

When inheritances involve trusts, consultation with an estate planner to interpret trust documents may be needed as part of the divorce process. Inheritances can also have complicated financial and tax implications that require the input of financial professionals.

 When negotiating around inheritances, there are some common questions that arise:

  • Is the inheritance a mere expectancy or a vested interest, and how does one find out?
  • When was the inheritance received (before marriage, during the marriage, at the end of the marriage), and has the inheritance been segregated or has it been used for the family?
  • If it was used for the family, if the other spouse inherits in the future should there be parity?
  • Did the family rely on the inheritance or the expectation of an inheritance as part of their own financial planning?
  • How will pursuit of information about inheritances affect family relationships?
  • What information and/or documents need to be shared, if any?
  • What experts might be needed, if any?

While strong sentiments about inheritances can make for difficult conversations, parties should not shy away from those conversations, but rather find a respectful and dignified process and the appropriate professionals to work with to make these conversations meaningful. Out of court dispute resolution, such as mediation or Collaborative Law, can provide a safe space for bringing all the necessaries parties together and for having an informed and reasoned discussion that leads to agreement about a very thorny subject.

To discuss your family law matter including inheritance issues or to learn more about mediation or Collaborative Law, please contact us.