Is my inheritance marital property in Illinois?

Inheritance is generally non-marital property in Illinois under 750 ILCS 5/503(a)(1). However, if you deposit inherited funds into a joint account or use them to improve marital property (like renovating the family home), they may become commingled and subject to division. Keep inherited assets in a separate account titled only in your name to preserve their non-marital character.

What happens to property I owned before marriage?

Property owned before marriage is generally non-marital under Illinois law. However, any increase in value during the marriage may be marital property if that increase resulted from marital contributions (effort, funds, or labor). For example, if you owned a business before marriage worth $100K that grew to $500K during marriage partly due to your spouse's contributions, the $400K increase could be marital property.

How does Illinois divide marital property?

Illinois is an equitable distribution state, not a community property state. This means the court divides marital property fairly, but not necessarily 50/50. The court considers factors including: length of marriage, each spouse's contributions, economic circumstances, any prenuptial agreements, and whether either spouse dissipated assets. The goal is a just division based on the specific circumstances of your case.

Can a prenup protect my assets from being marital property?

Yes, a valid prenuptial agreement can define what property remains non-marital and how assets will be divided in divorce. However, the prenup must meet Illinois requirements: written form, voluntary execution, fair disclosure of assets, and it cannot be unconscionable. Courts may set aside prenups that are procedurally or substantively unfair.

What is commingling and how does it affect my property?

Commingling occurs when non-marital property is mixed with marital property to the point where it cannot be traced. For example, depositing inheritance into a joint checking account used for household expenses. Once commingled, the burden shifts to you to trace and prove what portion remains non-marital. Without clear documentation, commingled assets are typically treated as marital property.

Is my spouse entitled to my retirement accounts?

Your spouse is typically entitled to the marital portion of retirement accounts—the value accrued during the marriage. Contributions made before marriage and after separation remain non-marital. A QDRO (Qualified Domestic Relations Order) is usually required to divide 401(k)s and pensions. The marital portion is calculated using the 'coverture fraction' formula.

Marital vs Non-Marital Property in Illinois

Understand how Illinois divides property in divorce—what's protected, what's at risk, and how to preserve what's rightfully yours.

Key Insight: Illinois is an equitable distribution state. "Equitable" means fair—not necessarily 50/50. Courts divide marital property based on multiple factors, while non-marital property generally stays with its owner.

What is Marital Property in Illinois?

Under 750 ILCS 5/503, marital property includes all assets and debts acquired by either spouse during the marriage, regardless of whose name is on the title. This includes:

Income earned during the marriage
Homes, cars, and personal property purchased during marriage
Retirement contributions made during the marriage
Business interests acquired or grown during marriage
Bank accounts, investments, and stock options
Debts incurred during the marriage (credit cards, loans, mortgages)

What is Non-Marital Property?

Non-marital property is protected from division and generally stays with its original owner. Under Illinois law, non-marital property includes:

Property owned before the marriage
Inheritances received by one spouse (even during marriage)
Gifts received by one spouse from third parties
Property excluded by valid prenuptial or postnuptial agreement
Property acquired after legal separation
Compensation for personal injuries (except lost wages portion)

The Commingling Problem

Non-marital property can lose its protected status through commingling—mixing it with marital assets. Common ways this happens:

Depositing inheritance into a joint bank account
Using pre-marital funds for home improvements
Adding your spouse's name to a pre-marital asset
Paying marital debts with non-marital funds

Protection Strategy: Keep non-marital assets in separate accounts titled only in your name. Maintain records showing the source of funds and never mix them with marital money.

Marital vs Non-Marital: Quick Reference

Asset Type	Marital?	Notes
House bought during marriage	Yes	Even if only one name on deed
401(k) contributions during marriage	Yes	Pre-marriage balance is non-marital
Inheritance kept separate	No	Must not be commingled
Gift from parent to one spouse	No	Must be clearly gifted to one spouse
Business started before marriage	Partial	Growth during marriage may be marital
Personal injury settlement	Partial	Lost wages portion is marital

How Illinois Courts Divide Marital Property

Illinois courts consider multiple factors when dividing marital property under 750 ILCS 5/503(d):

Each party's contribution to acquiring or preserving the marital property, including homemaker contributions
Dissipation of marital assets by either party
Value of non-marital property assigned to each spouse
Duration of the marriage
Economic circumstances of each spouse after division
Obligations from prior marriages
Prenuptial or postnuptial agreements
Age, health, and employability of each party
Custodial provisions for children
Tax consequences of the property division

Common Misconception: Many people believe the spouse who "earned more" keeps more. Not true. Illinois courts value homemaker contributions equally. A stay-at-home parent may receive 50% or more of marital assets.

Frequently Asked Questions

Inheritance is generally non-marital property under 750 ILCS 5/503(a)(1). However, if you deposit inherited funds into a joint account or use them to improve marital property, they may become commingled and subject to division. Keep inherited assets separate to preserve their non-marital character.

Property owned before marriage is generally non-marital. However, any increase in value during marriage may be marital property if the increase resulted from marital contributions. For example, a business worth $100K before marriage that grew to $500K partly due to your spouse's contributions could see the $400K increase treated as marital.

Illinois uses equitable distribution—fair, not necessarily equal. Courts consider the length of marriage, each spouse's contributions (including homemaking), economic circumstances, prenups, and whether either spouse dissipated assets. The division aims to be just based on your specific circumstances.

Yes, a valid prenuptial agreement can define what remains non-marital and how assets will be divided. The prenup must be in writing, voluntarily executed, include fair disclosure, and not be unconscionable. Courts may set aside prenups that are procedurally or substantively unfair.

Commingling occurs when non-marital property is mixed with marital property to the point it cannot be traced. Once commingled, you bear the burden of proving what portion remains non-marital. Without clear documentation, commingled assets are typically treated as marital property.

Your spouse is typically entitled to the marital portion—the value accrued during marriage. Contributions before marriage and after separation remain non-marital. A QDRO is usually required to divide 401(k)s and pensions, using the "coverture fraction" formula to calculate the marital portion.

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This article is for informational purposes only and does not constitute legal advice. No attorney-client relationship is created by reading this content.