Do I have any rights to husband’s inheritance after divorce? 10 Answers as of October 14, 2012

I have been married for 33 years, separated for 4. I will be filing a divorce next year. Do I have rights to his inheritance, received post separation? How does the retirement assets get divided? At what point would the division start, time prior to separation or the whole marriage? What if he spent his 401K and is not working now?

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Steven Alpers | Steven Alpers
Inheritance is part of the definition of separate property. If the 401k is spent there is nothing to divide. Pension plans are divided up according to the time he was in the retirement plan versus the time you were married to him while he was under the pension plan. That would be months before it would be divided.
Answer Applies to: California
Replied: 10/14/2012
LAW OFFICE OF ANNE B. HOWARD | Anne B. Howard
His inheritance whenever received is his separate property and you get no rights. Retirement assets are divided depending on what kind they are IRA, 401K, pension, etc. A separate court order is probably needed. If not written correctly, you may get nothing. Division is done in your settlement agreement and another court order but the funds probably have restrictions as to when you can receive them. If he spent his 401K, then you would have to consider that in any equalization as he's spent your share also. But if he spent it and you are still married, then there were no restraining orders to prevent him from doing so. You should contact an attorney as you are dealing with lots of variations and possibly a trial on these issues and waiting to file for divorce may not be in your best interest as restraining orders attach as soon as you file and he is served.
Answer Applies to: California
Replied: 10/14/2012
Law Offices of Arlene D. Kock
Law Offices of Arlene D. Kock | Arlene D. Kock
You need to meet with an experienced family law attorney to properly assess your legal options.
Answer Applies to: California
Replied: 10/13/2012
Law Offices of Frances Headley | Frances Headley
No, even if you were still together, inheritances are separate property.
Answer Applies to: California
Replied: 10/13/2012
Peyton and Associates | Barbara Peyton
Only to the extent that it might generate income for payment of spousal or child support purposes. Otherwise, it is his separate property and does not have to be divided in a divorce or after a divorce.
Answer Applies to: California
Replied: 10/13/2012
    LAW OFFICES OF MANUEL A JUAREZ | MANUEL A. JUAREZ
    You have no rights to your husband's inheritance. It will be classified as separate property. Because of your long duration marriage you are entitled to half of your husband's pension up until the date of your separation. You are entitled to half of the community property assets. Do not wait for him to spend the moneys file your divorce now and joinder his retirement pension right away. Good luck.
    Answer Applies to: California
    Replied: 10/13/2012
    Law Office of L. Paul Zahn
    Law Office of L. Paul Zahn | Paul Zahn
    Inheritance, whenever received, are separate property, so you have no right to his inheritance. As for retirement, it depends upon the type of retirement as to how it is divided. With a traditional pension, the time line approach is used. The percentage is determined by dividing the number of months the pension was earned during marriage by the total number of months earned in the pension. If the 401(k) was spent prior to the divorce filing, then there is nothing to get.
    Answer Applies to: California
    Replied: 10/13/2012
    Law Offices of Charles Elias
    Law Offices of Charles Elias | Charles Elias
    Very simply, community property is property earned during the marriage. Separate property is property owned before the marriage or acquired after separation. Separate property is also property acquired by gift or inheritance. Family law is complicated and there may be some exceptions or qualifications concerning the determination of whether a certain property is community or separate. I would have to know many more details before I could advise you with more certainty. Retirement assets which were earned during the marriage are community property, again with certain exceptions and qualifications. The usual way retirement assets are divided is that the community property retirement assets are divided "in kind" with each party receiving half of the community share of the assets. The court may also divide the retirement assets by awarding the assets to one party and giving an offset for the value of the retirement assets to the other party. The courts used to offset assets more frequently but now offsets are rarely ordered, primarily because it is difficult to determine the present value of a retirement asset and the retirement assets have not had the taxes paid on them while other assets in the community portfolio usually have already had the taxes paid on them. Evaluating the community interest in retirement assets is based upon the value of the retirement assets attributable to what was created during the period from the date of marriage to the date of separation. This value may have changed during the 4 years since you separated. Both parties can spend community assets during the marriage before separation unless the assets are given away without consideration for for less than adequate consideration. This means that if your husband spent his 401k money on himself- say he went on an expensive vacation- you would not be compensation for his expenditures. On the other hand, if your husband spent the money on gifts for his girlfriend, you would be entitled to be compensation for your community share of this money.
    Answer Applies to: California
    Replied: 10/13/2012
    WARREN LAW GROUP PC | RANDY WARREN
    You raise several points. First, you have no rights to his inheritance even while you are married. An inheritance received is one of the exceptions to community property in California. Retirement assets are typically divided based on assets added during the period of marriage. If he spent his entire 401(k) during the marriage, for the community's benefit, you get nothing. If he spent it on separate property, such as a home in his name, you may have a claim on it. If he only spent the 401(k) after the date of separation, it does not relieve him of the obligation to pay to you your share of that fund if such share exists. This is a complicated area of law and an attorney is recommended.
    Answer Applies to: California
    Replied: 10/13/2012
    Diefer Law Group, P.C.
    Diefer Law Group, P.C. | Abel Fernandez
    You do not get to share in his inheritance. You do have an interest in all pension and retirement accounts accumulated in the marriage. You get one half of all contributions put into the retirement account put into the account from the date of the marriage to the date of the separation.
    Answer Applies to: California
    Replied: 10/13/2012
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