The answer is that it depends. Broadly, if one spouse has already received a gift or inheritance, it would be property in that person’s estate subject to potential distribution in the divorce. If a married person is named in a will as a beneficiary or someone has told them that they will bequeath something to them or give them a gift in the future, those possible, potential avenues of gaining assets are likely not concrete or certain enough to count as distributable property in the divorce.
Majority of other states treat bequests and gifts differently
We have written in this space about Connecticut’s property distribution system in divorce – an all-property, equitable-distribution scheme. At this link to a previous post, we describe in detail that in a Connecticut divorce, all property in the estate of either spouse is available marital property eligible for division and redistribution in divorce proceedings. CT Gen. Stat. sec. 46b-81.
This includes inheritances and gifts, so long as they fall within the Connecticut definition of marital property. We do not incorporate the concept of separate property in our jurisprudence. In many other states (those with community-property regimes or equitable distribution with separate-property schemes), inheritances and gifts to individual spouses are considered separate property that normally (with some exception) the recipient gets to keep after the divorce – it is off the table for redistribution.
Knowing how other states wall off inheritance and gifting from susceptibility to division, people in Connecticut are sometimes unaware that our courts do not exclude bequests and gifts from potential distribution in divorce proceedings. The issue instead is whether an inheritance or gift is an enforceable “presently existing property interest” that would be fair to distribute or a “mere expectanc[y] immune from equitable distribution.” Mickey v. Mickey, 292 Conn. 597 (2009).
Present interest or mere expectancy?
“Property” in this context means an interest the litigant already has in “specific benefits.” Rubin v. Rubin, 204 Conn. 224 (1987). Only property owned at the time of the divorce is subject to equitable distribution between the litigants, including gifts and inheritances already obtained.
“[A]ssets acquired by inheritance are not automatically awarded to the party who inherited them.” Wood v. Wood, 160 Conn.App, 708 (2015). See also A. Rutkin et al, 7 Conn. Practice, Family Law & Practice, 3d, sec. 26:17, 26:18 The trial court must weigh all relevant factors listed in the equitable-distribution statute, but the needs of the litigant who did not inherit or receive as a gift the property can outweigh that the source was an inheritance or gift of the other. According to Rutkin, the court may also order inherited assets sold and the proceeds split between the litigants, noting that neither spouse actually “participate[d] in the acquisition of the asset.”
Our state Supreme Court explains that future inheritances are normally too speculative in nature to be distributable in divorce. For example, the benefactor could change their will or lose the property at issue in bankruptcy – or sell it or gift it to someone else. See Mickey; Bender v. Bender, 258 Conn. 733 (2001).
It would also be too difficult to accurately quantify the value of a potential future bequest or gift. Without valuation, it could not be fairly included in a calculation of equitable distribution of property between the litigants. Equity could not be determined without reasonable knowledge of property worth.
The Connecticut Supreme Court discusses the speculative nature of future inheritances by defining an expectancy as the “bare hope of succession to the property of another, such as may be entertained by an heir apparent. Such a hope is inchoate … [with] no attribute of property, and the interest to which it relates is at the time nonexistent and may never exist.” Gaynor v. Payne, 261 Conn. 585 (2002), quoting Krause v. Krause, 174 Conn. 361 (1978).
A future inheritance does not become a present and enforceable property interest until the donor’s death when the “right of inheritance or testamentary succession” is determinable and vests in the recipient. See Krause. At that point in time, the right to the inheritance vests in the divorce litigant and could properly be marital property subject to equitable distribution, although there may be a delay for exact valuation in the probate process.
Future gift or bequest could be basis for alimony modification
While the chance is slim that a judge would find a future inheritance or gift to be an enforceable present interest that could be divisible as property in divorce, it may play a contingent role in future alimony modification. Once a divorce is final and not appealable, the division of property is also final. Alimony, however, can be modified after divorce if one of the litigants has a substantial change of circumstances relevant to the need for or ability to pay it.
Connecticut courts have at times included in final divorce orders that should a potential inheritance vest in a litigant or they receive a gift in the future, that newly obtained property could support modification of an alimony order if the new resources are appropriate to consider. See Mickey and Rubin. Bartlett v. Bartlett, 220 Conn. 372 (1991).
The high court has also approved of classifying “gifts, if received regularly and consistently,” as proper considerations for setting alimony awards as “they increase the amount of income available for support purposes.” Birkhold v. Birkhold, 343 Conn. 786 (2022), quoting in part Unkelback v. McNary, 244 Conn. 350 (1998).
Experienced legal counsel
A litigant with concern about the treatment of an inheritance or gift in divorce should seek out a Connecticut family lawyer with extensive experience in property distribution. The attorney will know the ins and outs of this potentially complex legal issue and can use their knowledge and skill to their client’s advantage.
