South Carolina laws re: inheritances and divorce

[Eekamouse]

What is the name of your state (only U.S. law)? South Carolina
I've been doing some googling regarding this subject and I'd like to be sure I am accurate in my thinking that should a couple divorce in this state, there is no dividing money one of the parties inherited from their relative who recently passed. Inherited money is not part of the marital property, correct? Or have I read the statutes incorrectly?

 

[I'mTheFather]

True, as long as the money is kept separate from marital funds.

 

[single317dad]

Generally, a gift or inheritance to you alone that has not been commingled into marital property remains yours alone. If the amount is significant you would be well served to consult a local attorney to examine all the details and assist you with your divorce.

 

[Eekamouse]

Thanks. I appreciate the responses. It's not my divorce, though. I was asking for a friend. I was pretty sure my research was right but I always feel better when I ask for clarification from you fine folks.

 

[Bali Hai]

Thanks. I appreciate the responses. It's not my divorce, though. I was asking for a friend. I was pretty sure my research was right but I always feel better when I ask for clarification from you fine folks.

A savvy lawyer could blow these fine folks opinion out of the water.

 

[Eekamouse]

A savvy lawyer could blow these fine folks opinion out of the water.

How so, O pessimistic one?

 

[latigo]

Thanks. I appreciate the responses. It's not my divorce, though. I was asking for a friend. I was pretty sure my research was right but I always feel better when I ask for clarification from you fine folks.

For your edification, sole and separate property is that owned by a spouse prior to marriage, assets received by gift or descent and property received in exchange for the same. And it is not "generally" so. It is explicitly so in all states!

Rents, issues and profits received from separate property are marital. However, that obtained by the depletion of separate property, example oil, gas and mineral production retain their separate character. In other words such remuneration is not considered income in the same sense as are rents, issues and profits.

But do not be misled by some other responses here to believe that transmutation necessarily occurs whenever an asset having sole and separate character is mingled with marital.* There are too many factors to be considered in determining whether or not the separate character is converted to justify a categorical response.

Also, you might wish to expand your "legal research" by taking a peep under the subject heading: "The unauthorized practice of law"! Why?

Because right or wrong, gratuitously or not, you are doing your "friend" a disservice and one prohibited by law.

And why to I know that? Because it wouldn't be necessary to explain to a licensed professional the distinction between separate and marital property.

_________________


[*] "Beware of false knowledge; it is more dangerous than ignorance." (George Bernard Shaw)

 

[Eekamouse]

For your edification, sole and separate property is that owned by a spouse prior to marriage, assets received by gift or descent and property received in exchange for the same. And it is not "generally" so. It is explicitly so in all states!

Rents, issues and profits received from separate property are marital. However, that obtained by the depletion of separate property, example oil, gas and mineral production retain their separate character. In other words such remuneration is not considered income in the same sense as are rents, issues and profits.

But do not be misled by some other responses here to believe that transmutation necessarily occurs whenever an asset having sole and separate character is mingled with marital.* There are too many factors to be considered in determining whether or not the separate character is converted to justify a categorical response.

Also, you might wish to expand your "legal research" by taking a peep under the subject heading: "The unauthorized practice of law"! Why?

Because right or wrong, gratuitously or not, you are doing your "friend" a disservice and one prohibited by law.

And why to I know that? Because it wouldn't be necessary to explain to a licensed professional the distinction between separate and marital property.

_________________


[*] "Beware of false knowledge; it is more dangerous than ignorance." (George Bernard Shaw)

I see. So finding out whether she needs to worry that the money she is about to inherit from her grandfather's estate is going to be considered community property should she file for divorce if deposited into a joint account is illegal? Thanks for pointing that out to me. My emoticons are not working so please imagine a big fat sarcastic roll of my eyes, Latigo.

 

[LdiJ]

I see. So finding out whether she needs to worry that the money she is about to inherit from her grandfather's estate is going to be considered community property should she file for divorce if deposited into a joint account is illegal? Thanks for pointing that out to me. My emoticons are not working so please imagine a big fat sarcastic roll of my eyes, Latigo.

It would be a very bad idea to deposit the money in a joint account. That would not automatically make it marital property but it would muddy things unnecessarily...and over time, make it more difficult to distinguish which money was from the inheritance, and which money was marital. It should be kept in a separate account in just your friend's name.

 

[Eekamouse]

It would be a very bad idea to deposit the money in a joint account. That would not automatically make it marital property but it would muddy things unnecessarily...and over time, make it more difficult to distinguish which money was from the inheritance, and which money was marital. It should be kept in a separate account in just your friend's name.

Oh, I totally agree, LdiJ, but I better be careful not to tell her this as I would be breaking the law, according to Latigo.

 

[LdiJ]

Oh, I totally agree, LdiJ, but I better be careful not to tell her this as I would be breaking the law, according to Latigo.

Heck, every person who posts on these forums who is not registered with the BAR in their respective states is breaking the law according to Latigo...despite the forum disclaimers...even when he is dead wrong on a particular issue...sigh.

 

[latigo]

I see. So finding out whether she needs to worry that the money she is about to inherit from her grandfather's estate is going to be considered community property should she file for divorce if deposited into a joint account is illegal? Thanks for pointing that out to me. My emoticons are not working so please imagine a big fat sarcastic roll of my eyes, Latigo.

(I'm a bit amazed that you took that little scolding so well. Of course you could be seething inside, but more charitable than this grumpy dude.)

Anyway . . . no question that such an inheritance would be her sole and separate property and it would not be "illegal" for her to deposit the inheritance in a bank account created in both names. (I assume we are talking money and not securities, hard goods or land.) Questionable would be the prudence in doing so. Imprudent if she intends to preserve its separate character apart from marital property. The latter being all assets accumulated by either during the marriage that is not classified as sole and separate property.

(I should add that in some jurisdictions (mine for example) the earnings of a wife while living separate and part from her husband (by choice) are also classified as sole and separate property.)

The word "commingle" has been mentioned in this thread, which literally means the blending or combining of individual parts into a harmonious whole . And again when the mix consists of both spousal separate and marital property often the former is transmuted into the latter and thus no longer his or hers, but theirs. It would seem that it could be the reverse, that is, marital converted into a spouse's sole and separate property. But it takes the presence of the elements of gift to do so. Plus, the legal presumption favoring marital.

However as mentioned earlier not every such integration results in spousal separate assets being converted into marital. Not if there is an ability to trace and identify it.

In divorce litigation when the question of a commingling and sorting out separate assets from marital arises the courts seem to be more liberal when it comes to identifying the wife's separate estate than that of the husband. And more inclined to find a gift to the marital estate composing the husband's separate assets than on the part of the wife.

Naturally "Bali Hai" would claim that is because the man always gets the short end of the divorce stick. But then Bali also hated his mother.

 

[Eekamouse]

The inheritance is going to come to her in the form of cash. It will come in a couple of installments. As far as I can see, she doesn't even need to tell her husband how much she received because it is not his business. It will be her separate property and does not factor into any divorce settlement. I'm sure he won't see things this way and has already indicated he feels half of her inheritance will belong to him, divorce or not, as her grandfather passed away while they were husband and wife.

 

[single317dad]

The inheritance is going to come to her in the form of cash. It will come in a couple of installments. As far as I can see, she doesn't even need to tell her husband how much she received because it is not his business. It will be her separate property and does not factor into any divorce settlement. I'm sure he won't see things this way and has already indicated he feels half of her inheritance will belong to him, divorce or not, as her grandfather passed away while they were husband and wife.

Your friend should refer her husband to "SC 20-3-630. Marital property; nonmarital property." If the husband is a reasonable person, the argument will end and attorney fees will be saved for other endeavors.

http://www.scstatehouse.gov/code/t20c003.php

(A) The term "marital property" as used in this article means all real and personal property which has been acquired by the parties during the marriage and which is owned as of the date of filing or commencement of marital litigation as provided in Section 20-3-620 regardless of how legal title is held, except the following, which constitute nonmarital property:

(1) property acquired by either party by inheritance, devise, bequest, or gift from a party other than the spouse;

(2) property acquired by either party before the marriage and property acquired after the happening of the earliest of:

(a) entry of a pendente lite order in a divorce or separate maintenance action;

(b) formal signing of a written property or marital settlement agreement; or

(c) entry of a permanent order of separate maintenance and support or of a permanent order approving a property or marital settlement agreement between the parties;

(3) property acquired by either party in exchange for property described in items (1) and (2) of this section;

(4) property excluded by written contract of the parties. "Written contract" includes any antenuptial agreement of the parties which must be considered presumptively fair and equitable so long as it was voluntarily executed with both parties separately represented by counsel and pursuant to the full financial disclosure to each other that is mandated by the rules of the family court as to income, debts, and assets;

(5) any increase in value in nonmarital property, except to the extent that the increase resulted directly or indirectly from efforts of the other spouse during marriage.

Interspousal gifts of property, including gifts of property from one spouse to the other made indirectly by way of a third party, are marital property which is subject to division.

(B) The court does not have jurisdiction or authority to apportion nonmarital property.

 

[latigo]

The inheritance is going to come to her in the form of cash. It will come in a couple of installments. As far as I can see, she doesn't even need to tell her husband how much she received because it is not his business. It will be her separate property and does not factor into any divorce settlement. I'm sure he won't see things this way and has already indicated he feels half of her inheritance will belong to him, divorce or not, as her grandfather passed away while they were husband and wife.

For beginners it would be most unusual that the personal representative of grandpa's estate would be making direct distribution to a beneficiary in "installments". And nothing is mentioned indicating a testamentary trust with spendthrift provisions. So your reporting that it is so is most suspect.

Secondly, since you have your friend's best interests in mind, you could best serve those interests by suggesting that she seek professional advice. Something that you are not equipped to provide.

Fini!