Protecting Inheritances and Trusts in Kansas Divorce Cases

Many people approaching divorce worry about how they can protect their inheritances and assets kept within trusts. These assets often derive from parents or grandparents, living or deceased, who wanted their legacy to remain in the family. In Kansas, the distribution of property during a divorce begins by identifying what is considered marital property subject to division, and what is separate property belonging only to one spouse.

Each spouse theoretically has an opportunity to preserve their separate assets by excluding them from the pool of marital property that is subject to equitable distribution. The review of financial records can help establish that certain assets belong solely to one spouse, possibly because they were acquired prior to the marriage or inherited directly before or during the marriage. Inheritances and gifts given to one spouse are generally considered separate property and usually can be excluded from the marital estate, but only if a husband or wife is diligent about shielding that particular asset.

Establishing that inheritances and trust resources are separate property can be a challenging aspect of the equitable property division process. The burden of proof is on the spouse claiming that certain property is separate during litigation or negotiations. They must show that the origins of the assets are traceable to an inheritance or to their separate assets and income acquired prior to marriage and no commingling has occurred.

Commingling happens when separate property gets mixed with marital property. Depositing funds into a joint account, using marital income to fund a trust and retitling an inherited home into both spouses’ names are all examples of commingling. Once that happens, judges are more inclined to treat an asset as part of the marital estate and subject to division.

As a general rule, irrevocable trusts and trusts established by outside parties tend to have stronger protections than revocable living trusts established by one spouse, especially if they funded the trust during the marriage. In many cases, proof that one spouse maintained sole control over an inheritance or trust assets, and that they did not use marital income to preserve their separate property, is necessary to exclude those assets from the marital estate during a divorce.

Spouses with valuable separate property that they want to preserve, including inherited wealth, frequently benefit from securing legal representation prior to their marriage, or when they obtain the separate assets. If a disagreement arises over a particular item during the divorce process, your attorney can assess your chances to secure a decision that assets conferred through a trust or inheritance constitute separate property.

The Henry Law Firm P.A. advises spouses on a wide range of financial issues relating to marriage and divorce, including the allocation of inheritances and trust assets. To discuss your particular issue, please call 913-381-5020 or contact us online. Our office is in Overland Park.