Whether or not an inheritance will be subject to division in a divorce will often hinge on whether or not the spouse has a vested interest in the inheritance, meaning that they have a right to use of the funds currently. An inheritance in the possession of one spouse is considered part of the marital estate and is subject to division under M.G.L. c. 208, §34 (https://malegislature.gov/laws/generallaws/partii/titleiii/chapter208/section34) as part of divorce.

To the contrary, a future inheritance expected by one spouse, but not yet I that spouse’s possession is not included in the marital estate as an asset subject to division.  Expectancy interests include things like an interest in a will or a trust while the testator is still living. The future inheritance cannot be quantified and are speculative as the interest the spouse may inherit from a still-living person can be changed or eliminated at any time while the person remains living.

The court may, however, consider the high probability that one spouse will receive an inheritance at some point in the future when determining how to equitably divide the existing marital assets.  In doing so, the court may award a greater portion of the marital assets to the spouse who does not have an expectation that he or she will receive an inheritance in recognition that the other spouse expects to receive a future inheritance.

As addressed in the 2018 Massachusetts Appeals Court decision Frasca v. Frasca , the Court cannot assign a percentage of future inheritances one spouse may receive to the other.  In Frasca, the parties were married for approximately 34 years and lived an upper middle-class lifestyle throughout the marriage, funded in large part by the husband’s mother.  As part of the divorce judgment, the Probate and Family Court found that the wife was completely financially dependent on the husband and his family’s wealth and awarded the wife 35% of any future inheritances the husband may receive.   The husband appealed the judgment, arguing that it was reversable error to assign the wife a portion of his future inheritances as he had no vested interest in the inheritances at the time of the divorce, therefore they were expectancy interests not part of the marital estate subject to division as part of a divorce.  The Appeals Court agreed and reversed that portion of the judgment.

Pursuant to M.G.L. c. 208, §34, the court must take into consideration the following 14 factors when making a decision regarding the equitable division of a marital estate as part of a divorce:

  • Length of marriage
  • Conduct of the parties during the marriage
  • Age of the parties
  • Health of the parties
  • Station of the parties
  • Occupation of the parties
  • Amount and sources of income of the parties
  • Vocational skills of each party
  • Employability of each party
  • Estate of each party
  • Liabilities and needs of each party
  • Opportunity of each party for future acquisition of capital assets and income
  • Amount and duration of alimony
  • Present and future needs of the dependent children of the marriage

In addition to the mandatory factors listed above, judges may also consider the following two non-mandatory factors:

  • Contribution to marital estate
  • Contribution as homemaker

The Court still has considerable discretion in deciding what, if any portion of an inheritances should be divided as part of a divorce. If you have questions about inheritances and divorce the lawyers at Mansur Law Group can help you understand what your rights are and help your develop a strategy to protect your family’s wealth.