Separate Property in Marriage and Estate Planning

To ensure that after passing away all property is divided the way an individual wants, it is imperative that correct wording in estate planning is used. This applies especially to married individuals who have marital and separate property.

In Ohio, during marriage, property is divided into one of two categories: marital or separate. Separate property is anything acquired before the marriage; inheritance by one spouse during marriage; gift made clearly to one spouse; or compensation to one spouse for personal injury. Marital property, on the other hand, is all property, real and personal, acquired during marriage, and that includes any income or appreciation on separate property. Any separate property can become marital by commingling it with marital.

Ohio courts created something called ‘donative intent’ when deciding whether property is marital or separate, after one spouse pass away. This means, that if estate planning documents are not in place, even though most of the time there is an assumption that one spouse wants the other to inherit his or her property upon death, the court will actually look at whether a spouse intended for their spouse to be the owner of the property. In determining that, the court will look at how the property is titled.

For example, if a spouse buys a property with separate funds, but it is titled in both spouses’ names, the court will determine it to be marital property. On the other hand, if there have been instances where the court determined that a property was not marital, despite being in both spouses’ names because it saw evidence that one party’s donative intent was not to have the other spouse inherit the property.

While it may feel uncomfortable to consider divorce scenarios when creating estate planning, it is important to remember that you are only considering it as a possibility, not a reality. An experienced attorney can help you and your family create the right plan, while remembering about the possibility of a divorce.

Call or text Sobon Law, LLC at 216-586-4246, to speak with an attorney today!

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