Mediate This!

Is Inheritance Community Property? If Not Then What Is

April 22, 2022 Matthew Brickman, Sydney Mitchell Season 1 Episode 52
Mediate This!
Is Inheritance Community Property? If Not Then What Is
Show Notes Transcript

Community property is the marital pot of assets that are acquired during a marriage and which will also be split in the event of divorce. But is an inheritance and gifts also community property, why or why not? Matthew Brickman and Sydney Mitchell answer your most frequently asked questions about divorce as they go over several key points:

  • Assume nothing.
  • Know who you are before you get married. 
  • Know who you're getting married to. 
  • Know the laws and statutes in the state you live in.
  • Don't take advice from anyone who isn't a legal professional in the state in which you're getting married and living in.

If you have a matter, disagreement, or dispute you need professional help with then visit iMediate.com - Email mbrickman@ichatmediation or Call (877) 822-1479

Matthew Brickman is a Florida Supreme Court certified family and appellate mediator who has worked in the 15th and 19th Judicial Circuit Courts since 2009 and 2006 respectively. But what makes him qualified to speak on the subject of conflict resolution is his own personal experience with divorce.

Download Matthew's book on iTunes for FREE:
You're Not the Only One - The Agony of Divorce: The Joy of Peaceful Resolution

Matthew Brickman
President iMediate Inc.
Mediator 20836CFA
iMediateInc.com

Sydney Mitchell:

Hi, my name is Sydney Mitchell.

Matthew Brickman:

Hi, I'm Matthew Brickman, Florida Supreme court mediator. Welcome to the Mediate This! Podcast where we discuss everything mediation and conflict resolution.

Sydney Mitchell:

Well, Matthew and I are sitting here together today, looking at a laundry list of questions , uh, that you are listeners have submitted to, to talk about. And we're gonna tackle a question today, actually, Matthew, there's some words in here that I don't quite understand what they, what their implications are. And , uh, so let's dive in the question that one of our listeners has submitted is, is inheritance considered community property. And , uh, that phrase community property. I personally have a , never heard that before. <laugh> so my first question to you is what is community property? And then we can really dig in , to the question. I'm sure there are some, some more of our listeners who haven't heard that phrase before.

Matthew Brickman:

Okay . So you and I, when we were going through the mediation agreement in the previous episode, we had talked about how Florida divides assets and debt. And I believe that you're probably familiar with the phrase cuz we've, we've talked about equitable distribution, right? Mm-hmm <affirmative> okay . So you understand equitable distribution mm-hmm so let's start there. Um, so for you and I, we live in Florida and so in Florida, an equitable distribution state. So Florida's not community property. Um, so let's then talk about community property. What is community property? So community property is made up of assets that come into the marriage during the mayor through any means other than inheritance or a gift. So to quickly just answer your question is inheritance community property. Well it says no, because it says community property is made up of assets that come into the marriage during the marriage other than inheritance or a gift. So the short answer to the question for our listener is no inheritance is not community property now to further look at, okay, how do we define community property assets acquired by the husband or the wife, regardless of how those assets are titled are viewed as assets of the marital community. So for example, husband has a car titled to him. You know, the title to the car is in his name. A wife has the yeah . During the marriage. So let's just say, you know, Bob and Carol get married, Bob buys a car, pays it off. It's titled to him, it's his car. Let's say that Carol didn't have that grade of insurance. So Bob buys a , a second car inside the marriage and that's the one that Carol drives. Once it gets paid off, then Bob gets the title. So Bob's got two cars, one that he drives one that Carol drives and they're both titled to him. Well, so community property says, regardless of how it's titled, it's part of the marital community or the marital pot. So it'll be divided.

Sydney Mitchell:

What would, what would , um, equitable district say about that ?

Matthew Brickman:

Well , we're gonna get, we're gonna get to equitable distribution in a moment. And then we'll talk about how that's different with equitable distribution being that we are in Florida. Okay .

Sydney Mitchell:

Okay . I don't mean to jump ahead. I'm just I'm my brain is ,

Matthew Brickman:

Yeah , I know. I know you , your brain's going million miles an hour now, before we jump into, okay. What, you know , how's it different for equitable distribution? We need to know. Well, how are the United , I mean, how's the United States situated? Is it community property or is it distribution? And remember you and I have talked over and over and over again and when we're tired of hearing it, we're probably just now getting it. How many times have we said no , the laws of your state, right?

Sydney Mitchell:

Yes. Number one. Okay . Listeners, <laugh> this I a few podcasts podcasts ago . I pointed this out. If you were to take anything from this podcast, if I could take away like one quote for you, it would be that to know the laws in your state. There's so many of our conversations that we have that really are dependent upon where you live now, we're in Florida, obviously. So we, we speak from that perspective, but yes. And amen to that, Matthew. It is , it is very , very ,

Matthew Brickman:

Okay . So as of , as of the date of recording this , so it is March, 2022. Okay . If you take a look here, Sydney , here are the remaining nine states out of 50, there's only nine states, which recognize the community property law. So as we sit here right now, they include Arizona community, property, California, community property, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington, and Wisconsin. It's

Sydney Mitchell:

Like wrapping around. Well , Wisconsin is a little random. Yeah . But the rest of them are all kind of wrapping around that, that

Matthew Brickman:

It sort of be exterior of the United States. Right.

Sydney Mitchell:

Say that again.

Matthew Brickman:

So , um , it's sort of the exterior of the United States. Yeah,

Sydney Mitchell:

Yeah,

Matthew Brickman:

Yeah, yeah . So , um, so out of the 50 states, there's only nine that still operate under community properties . So again, I don't know where our list are lives, but if they're in Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington, or Wisconsin, if they have an inheritance, then it's not part of the community property. There's the short answer based on the research that we've done, but still for you listener who asked this question, go talk to an attorney in your state, see if the laws have changed. See if you are, when you know, whenever you're ready to file, whenever you're ready to do something , um, go and consult legal soul because you do not want to assume, oh, I heard this on a podcast laws change. Um , you know, laws are constantly changing. State to state legislatures are updating and passing things. So find out the laws of your state to just make sure before you do anything. Okay. So going back then to your question of , uh , community property , uh , or no, sorry, equitable distribution. So what we need to do Sydney to figure out what does equitable distribution mean is let's go look at Florida statute for what it says equitable distribution actually means . So when we pull up the statute for those that wanna listen , uh, or sorry for those that are listening, cuz you can't say for the rest of you, except for Sydney , Sydney , you can see it for the rest of you who are listening . It is chapter 61.075 . That is Florida law as it pertains to equitable distribution of marital assets and liabilities. So again, that's 61.075 . So according to Florida law, this is not me giving legal advice. Please go and consult an attorney, but let's just look at what the law says as it's written from the Florida legislature, the court. Well now I'm not gonna jump to the end. Let's let's read all the other stuff, even though it may or may , it may seem a little confusing. I'll summarize. So it says in a proceeding for disillusion of marriage, that means when filing divorce,

Speaker 3:

I'll say translate please.

Matthew Brickman:

<laugh> yeah, yeah. I'm I'm gonna go through and read and then I'm just gonna summarize in a proceeding for a disillusion of marriage that's considered when , when you file for a divorce, in addition to all other remedies available to the court to do equity between the parties. That means in addition to all other solutions that the court may use to create equity between husband and wife or in a proceeding for the disposition of assets, following a disillusion of marriage by a court, which lacked jurisdiction over an absent spouse or lacked your jurisdiction to dispose the asset. What that means is when the court is trying to figure out what to do with everybody's stuff, whether they have jurisdiction over their stuff or not, or even over the person, the court shall set apart to each spouse that spouse has non marital assets and liability. So for example, we had a listener that asked us going back to is my inheritance community property. Well, the court first has to see, well, did you keep it as a non marital asset? If you kept it as a non marital asset, it's not part of equitable distribution. If you're in one of the other states, other than the nine that are community property, if you co-mingled it, then it's probably gonna come into play

Sydney Mitchell:

And a car would be a great example of that.

Matthew Brickman:

What's that

Sydney Mitchell:

I said, and a car would be a great example of that, right? Just

Matthew Brickman:

No , usually usually with that Sydney , it's usually like bank account inherit . Like I'll give you an example. The other day, it's very recent. The other day I had a media where , um, the wife had a million dollars . That was an inheritance mm-hmm <affirmative> she kept it in a separate account. Never co-mingled it into their joint account. Didn't even put it into her bank account that she acquired after the marriage. It was a , a completely different account mm-hmm <affirmative> which kept it non-marital it was an inheritance. It was non-marital. And so for equitable distribution, it did not come into play because it was non-marital. Now I have had accounts. I mean, I've, I've had people where , for example, let's say that, let's just say, for example, I'm married and, well, I am married, but let's for this example, let's just say that I'm married and I receive an inheritance from a dead relative and I take that money and I put it into my regular bank account where my paycheck goes, where I pay bills from. Well , I ,

Sydney Mitchell:

From like a shared account.

Matthew Brickman:

Yeah , I have now co-mingled it, which means that inheritance is now marital, right? In the event that I get divorced or let's say, for example, it's a retirement account. Let's say that it's a separate retirement account and eventually I roll it into, so like it's it , it's an IRA. I have another IRA and I'm like, Hey, I just wanna combine 'em so I can get a bigger return on my money because compound interest, the more that's there, the bigger, the compound interest. Right? So I wanna combine the two. Well, once I combine the two, if one of them is marital and one of them is non marital. Once I commingle it too bad, that is now part of the entire community. Okay . So inequitable distribution, the court will set apart everybody's non-marital assets and non-marital liabilities. And in distributing the marital assets and liabilities between the parties, the court must begin with the premise that the distribution be equal. So that means that we're gonna put everything together. And the court says, we start with the premise of everything, 50 50, cut it right down the middle, but then it has a comma. And it says, unless there is justification for an unequal distribution based on all relevant factors. And then they list a whole bunch of factors, usually Sid . And I think we've probably talked about this in a previous episode , um , where we talked about marital dissipation and waste, let's say for example, that , um, there's a whole bunch of money in the account. I've got money, my wife's got money and stuff, and let's say that an affair takes place and I'm using part of my paycheck and you know, monies that I've got and I'm having an extra marital affair . Well actually I'm spending like 50% of that money that I'm spending on an extra marital affairs. Actually my wife's. So maybe when we, you know, maybe when she finds out we get divorced, well guess what? It's not 50 50 because I dissipated or I wasted marital monies on an extra relationship . Mm-hmm <affirmative> so there might be an unequal distribution. Um, there, one of the other places I've seen it is , um, recently had a mediation where there was an unequal distribution of the marital home because both parties were contributing to it throughout the marriage. But about a year prior to the divorce, the husband just stopped contributing and the wife had to contribute all of it. Mm well , so she was then going to receive credits and offsets for the principal that was paid mm-hmm <affirmative> to burst her because he was , and you know, he was keeping a hundred percent of his money. She but was not contributing. And so there was, and so we negotiated then an offset. So they would sell the home, they would split it 50, 50 plus she would get X amount reimbursed for where he did not kick it . And there's a number of years and we're not gonna go through all the factors cuz it goes on for a few pages. But you know, if our listeners want to go read, you know, what are other factors other than marital, dissipation and waste, what other factors could potentially be looked at when distributing marital assets and liabilities, again, Florida chapter 61.075 will then give them direction. And I always encourage everybody go and look before you go and talk to an attorney so that then you can, when you're talking to your attorney and you're interviewing them, they're sort of interviewing you to see if they want you as a client. When they're telling you the information you're informed. You're like mm-hmm <affirmative> okay , good. I'm getting good sound legal advice because I read that I know what the statute looks like. Mm-hmm <affirmative>, you know, a lot of people do that when they go to buy a car, the internet killed the car business in a way, because you know what? You run Kelly blue book. You, you know, you go to all these online buyers, you print out all the , all the information and you walk into a car dealership and you're like, I'm not paying sticker. I'll give you this. And then they want to try to, you know, give you fake numbers and you pull out all your documents. Well, there goes their entire spiel of taking advantage of you. So chapter 61, 0 , so seven five in Florida will define equitable distribution. And then again, if you are in, at , at the time of recording Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington, and Wisconsin that's community property. And to answer our listeners question in , in no inheritance is not considered community property in one of those states, Occasionally Sydney and I will be releasing Q & A bonus episodes where we will answer questions and give you a personal shout out.

Sydney Mitchell:

If you have a comment or question regarding anything that we discuss, email us at info@ichatmediation.com that's info@ichatmediation.com and stay tuned to hear your shout out and have your question answered here on the show.

Matthew Brickman:

For more information about my services or to schedule your mediation with me, either in person or using my iChatMediation Virtual Platform built by Cisco Communications. Visit me online at www.iMediateInc.com. Call me at 561-262-9121, Toll-Free at 877-822-1479 or email me at MBrickman@iChatMediation.com.