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Is inheritance from either party's ancessors distibutable in

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case of divorce or separation...
Is inheritance from either party's ancessors distibutable in case of divorce or separation in the state of NY?
Submitted: 2 years ago.Category: Family Law
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9/2/2015
Family Lawyer: Lucy, Esq., Lawyer replied 2 years ago
Lucy, Esq.
Lucy, Esq., Lawyer
Category: Family Law
Satisfied Customers: 30,589
Experience: Attorney with experience in family law.
Verified

Hi,

I'm Lucy, and I'd be happy to answer your questions today.

Funds received via an inheritance are typically the separate property of the spouse who inherited them and are not subject to equitable distribution during a divorce. There could be an exception if the property was commingled with other marital assets, or if the spouse's name was added to the property (like when someone inherits a house). Any prenuptial agreement or separation agreement that includes provisions for inherited property would overrule the general guideline that it belongs to the person who inherited it.

If you have any questions or concerns about my response, please reply WITHOUT RATING. It's important that you are 100% satisfied with my courtesy and professionalism. Otherwise, please rate my service positively so I am paid for the time I spend answering questions. If you are on a mobile device, you may need to scroll to the right. There is no charge for follow-up questions. Thank you.

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Customer reply replied 2 years ago
Per one of the lawyers you can remove your spouse from inheritance (unless specified in the prenup) per state of NY and the spouse is entitled to 1/3rd of the inheritance. Which inheritance is he talking about then? Is your answer specific to state of NY?
Family Lawyer: Lucy, Esq., Lawyer replied 2 years ago
my answer is specific to New York.
I'm talking about distribution of assets when spouses divorce, because that's what you asked. The other lawyer is talking about writing a will that leaves nothing to the person you are married to at the time you die. Those are 100% separate areas of law.
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Customer reply replied 2 years ago
Ok, so you mean if there is no divorce, none of the spouse can choose to remove the other spouse from his will completely and the other spouse will be entitled to 1/3rd of the property owned by the spouse who wrote the will?Or the spouse can choose to completely remove the other spouse from list of beneficiaries in his will, leaving the other spouse nothing at all in his will? If he or she does so (remove the other spouse completely), can other spouse challenge that will?If a prenup is in place listing all the pre marital assets separate and only marital assets as common, (because there was no divorce) does the other spouse get rights to (or 1/3rd share of) the separate property as well?
Family Lawyer: Lucy, Esq., Lawyer replied 2 years ago
I'm sorry, but I do not work in estate law. I need you to direct any questions about a will or disinheriting a spouse back to the expert you were talking to about those things.
A prenuptial agreement is ONLY effective if the spouses divorce. If one spouse dies while still married, it has no effect. In that case, inheritance/estate law applies, not family law.
Separate property v. marital property is also a concept that only makes a difference when spouses divorce.
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Customer reply replied 2 years ago
Ok, will do.so, you are saying, if there is no divorce and one of the spouse dies, properties listed as separate on the pre-nup agreemnt will not be considered separate and will become part of inheritance to his/her spouse and children as a marital property?
Family Lawyer: Lucy, Esq., Lawyer replied 2 years ago
I'm saying that separate property and marital property aren't terms anyone will even use at the time of death. It's all part of the estate and distributed according to estate laws.
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Customer reply replied 2 years ago
ok, so in that case as no divorce occured, the pre-nup agreement will become obsolete as it never existed? And the distribution will be done by the court as no pre-nup was ever there and per their guidelines for a normal distribution of property?
Family Lawyer: Lucy, Esq., Lawyer replied 2 years ago
It'll be based on the will, if there is one, and general estate laws if there isn't. The prenup speaks only at divorce.
Please rate my answer positively to ensure I get credit for the time I spend helping. If you are on a mobile device, you may need to scroll to the right. Thank you.
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Customer reply replied 2 years ago
Ok, do you see this point making sense? Or can you draft it look better in law language?AFTER MARRIAGE ASSETS & BANK ACCOUNTS: All the assets/properties/earning acquired after marriage (Except on the pre-marital separate properties) will be considered marital property and will be subjected to equal distribution in the event of separation or divorce. Both parties can maintain their separate bank accounts. But in the event of separation or divorce, all of the monies deposited after marriage by each party will be subject to equitable distribution. total of all the after marriage money deposited (not the remaining funds after all the spends but all the money ever deposited in all the bank accounts, as that will give the total earnings after marriage) in all the accounts both parties hold will be equally distributed as it will be considered as joint/common/marital property the same way as other assets or properties acquired after marriage. Any spends/withdrawals entry by each party from the time of marriage will be deducted from his/her 50% stake in the after marriage earnings, as that will make the distribution fair.
Family Lawyer: Lucy, Esq., Lawyer replied 2 years ago
That makes sense. A judge isn't likely to go through every purchase either of you ever made during the marriage, though (especially because many withdrawals will be for things that ultimately benefit both of you).
I'm unfortunately not able to reword it for you. We can only answer questions, and that would be providing specific legal advice.
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Customer reply replied 2 years ago
I always wonder, what if both the parties or spouses are still maintaining separate bank accounts after marriage and spend money as they wish (one is extravagent and the other is conservative/stingy/save and doesn't spend a lot from his/her bank account), in the event of divorce, how are the bank account monies distributed among both as the balance/money remaining in the bank accounts on a particular day or at the time of divorce will be just the remaining money and the extravagent person will be in a profit (if he mostly spends on his plastic surgery or things that benefit only him and not both) than the saver. Do we distibute all the earning/deposits ever made to the bank account or just the remaining money in all the bank accounts (after marriage deposits, if called out to be common on th epre-nup?)? How can one go for a fair distribution?
Can one challenge the distribution, if the distribution is only of the remaining money and the extravagent spouse spent most of his earnings on his/her personal benefits?
Family Lawyer: Lucy, Esq., Lawyer replied 2 years ago
Either spouse can use the other's extravagant spending habits as the basis for requesting a distribution other than 50/50. That's called dissipation of marital assets, and tends to happen when one spouse spends a lot on expensive jewelry, cars, gambling, alcohol, traveling alone, or even drugs, when the other does not.
In that case, the judge is only looking at the purchases that are claimed to be wastes of marital funds, rather than all monies spent over a marriage that lasted several years (or longer).
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Customer reply replied 2 years ago
ok. Can you review the attached draft and let me know if this looks good or what appears to be missing or need to be removed from this prenup aggreement?
Family Lawyer: Lucy, Esq., Lawyer replied 2 years ago
I'm sorry, but what you're asking for is beyond the scope of the assistance we're able to provide through this site. Any local attorney can do that for you.
Please rate my answer positively as a show of good faith. This is the only way I get paid for the time I spend helping you. There is no charge for related follow-up questions asked after rating.
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Customer reply replied 2 years ago
ok, in that case can you list down main points I should make sure i have on the prenup?
Family Lawyer: Lucy, Esq., Lawyer replied 2 years ago
That is also beyond the scope of this site. You're asking for the type of legal services that require paying a lawyer's normal hourly rate and cannot be done through this site. I'm sorry, but I cannot help with those things. Experts only agree to answer the question that is initially posted for the payment promised. I'm sorry if you misunderstood. Any local attorney can draft a prenuptial agreement for you.
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Family Lawyer: Law Educator, Esq., Lawyer replied 2 years ago
Law Educator, Esq.
Category: Family Law
Satisfied Customers: 119,441
Experience: Experienced attorney: Family law, Estate Law, SS Law etc.
Verified

Thank you for your question. I look forward to working with you to provide you the information you are seeking for educational purposes only.

I am a different contributor. Your previous contributor's information was correct. State law forbids us from drafting any legal documents for you. However, if you would like a sample of a prenuptial agreement that you can use to draft your own if you are not going to go to an attorney, we can do that for you. Let me know.

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Customer reply replied 2 years ago
Sure, please provide a draft that you think covers all the main points we should include on the pre-nup agreement.Also, do we really need to have Witness signature on the pre-nup agreement when we are notarizing it? If, yes, how many witnesses do we need to sign on the contract. One lawyer has place for only one Witness's signature whereas the other has for two witnesses....but when we are getting it notarized, isn't it kind of witness only?Is the mention of the law firm enough on the contract or we need lawyer signatures as well?
Family Lawyer: Law Educator, Esq., Lawyer replied 2 years ago

Thank you for your reply.

Here is a sample prenuptial agreement that is valid under NY laws: https://www.nysba.org/WorkArea/DownloadAsset.aspx?id=24076

Also, you do not need to have a witness signature on the prenuptial, but one at least is always a good idea. It should be least be notarized. There is no requirement as to witnesses as long as the signatures are notarized.

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Customer reply replied 2 years ago
Also, does this point look good to you to be added to the prenup agreement?
LIVING EXPENSES: Both parties will contribute equally towards after marriage living expenses, except, there will be no obligation on one of the spouse to pay half the rent or monthly mortgage for the property owned/rented by the other without his/her consent in written. In such case, he/she will be obligated to pay only the half of the monthly mortgage on the property (owned by either of them) with least monthly mortgage payments and within commutable distance to work for both parties.As one of the partner may choose and hence force the other spouse to live in $10K per month rent/mortgage payment rental or own property and then in case of separation claim for him/her to have paid half of the mortgage (though they had other properties in the accepatable location where other would have prefered to live to save money)?
Family Lawyer: Law Educator, Esq., Lawyer replied 2 years ago

Thank you for your reply.

Yes, that is a valid clause that you can insert into the agreement. It should say "(owned or leased by either of them)," this way it covers any rentals in case you do not own the property and that makes it consistent with the rest of the paragraph talking about mortgage or rent.

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Customer reply replied 2 years ago
Ok. Also, what if one of the spouse (or husband) is abusive and for that reason wife cannot continue to live with him or stay in the marriage full of danger to her life and applies for divorce, can the pre-nup be invalidated? Because the marriage was becoming life threatening for the other.
Family Lawyer: Law Educator, Esq., Lawyer replied 2 years ago

Thank you for your reply.

You can have a clause in there regarding spousal abuse and insert some penalties like spousal support and payment of full rent for the victim spouse if you want to do so. You can also have a clause that states in the event of spousal abuse (or even adultery) the agreement would be null and void, that is acceptable.

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Customer reply replied 2 years ago
ok. In the prenup we are going for, we have declared premarital assets/properties as separate and any income/assets generated out of them as separate; and the after marriage assets/properties/income as marital/joint. So, I think if the divorce is because of adultary or abuse, we still distribute after mariage assets @50% each, so what would be the benefit of declaring this prenup as invalid? Can you think of something?
Customer reply replied 2 years ago
I take it as very much per NY state law that all the after marriage assets are marital and subject to equal or equitable distribution, in the event of marriage. Only the premarital assets and inheritance are separate and won't be subject to equitable distribution, which anyways, per NY state law cannot be marital property unless specified as marital in written. So I guess per our prenup there won't be any special consequence in case of abuse or adultary. what else can you think of as the benefit of canceling the prenup in divorce is because of adultary or abuse?
Family Lawyer: Law Educator, Esq., Lawyer replied 2 years ago

Thank you for your reply.

The marital property in NY is subject to equitable distribution, except as altered by the terms of the prenuptial agreement. Inheritance is separate property not subject to division, BUT income made off of inheritance during the marriage MAY be divided and you can specify in the prenuptial agreement that any income from separate property, inheritance or otherwise, shall remain separate property not subject to any type of equitable distribution or division upon divorce.

You can state that in the event of abuse or adultery, the income from the separate property inheritance accrued during the marriage would be deemed marital property subject to equitable division and distribution in accordance with the current laws of NY at the time of the divorce.

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Customer reply replied 2 years ago
I don't want to sign any prenup but I am pregnant and I don't want to kill the baby becuase I don't want to sign it and he will not get married without prenup (he is divorced and with bad financial distribution experience from that), so I tried to negotiate. He is not ready for adding abuse and adultary clause and ready only for clauses that keep his property and assets safe. Only after marriage property is marital and out of that also his condo is not fully paid and he will be making mortgage payments for next 15 years or so for that, so will I be on my condo that I recently baught and which is not fully paid.Long story short - I don't want to sign any prenup, it's against my idea of marriage. But he is not ready to add few points that bring on any trouble for him. I don't want to kill/abort the baby and hence will have to sign the contract which I don't agree to fully. How can I prove that if he does something bad to be - abuse or adultary and we end up getting divorced? I want prenup to be totally invalid in case of abuse and adultary, as I am not willing to sign it in the first place and being forced to do so because of the baby? Please advise.
Family Lawyer: Law Educator, Esq., Lawyer replied 2 years ago

Thank you for your reply.

If he is not willing to add an abuse or adultery clause, you need to think what he is thinking about that. Is he afraid that he will commit one or the other? Does he have a history of abuse or adultery in his past and he is not willing to change? Those are questions you need to get your own answers to.

If he will not answer those questions, then you can tell him you are fine with that and as soon as the baby is born you will file a petition for custody and child support and the court is going to make him pay his fair share for the child anyhow and then he will have limited or no rights to see the child, the choice is his choice.

Bot***** *****ne, you cannot make a leopard change their colors and if he refuses to sign there is nothing you can do except leave those clauses out if you want to marry him because of the baby.

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Customer reply replied 2 years ago
there have been couple of incidents in the past when he got physical with me splitting lower my lip once and leaving me with scars on face and body at other times. I fought back as well but I cannot overpower a man. He cares for me and loves me and wants me in his life, and I can see that inhis eyes and we do enjoy going out and doing things together, but because of his past and struggles at work, he gets very temperamental and abusive at times which is scary. This has reduced lately but this may happen again and may get even worse so I want to be prepared for such a situation.If he doesn't sign this clause, then no way I can prove I was forced to sign the contract the way it is not 100% agreeing to it, because I was pregnant and didn't want to abort baby?
Family Lawyer: Law Educator, Esq., Lawyer replied 2 years ago

Thank you for your reply.

Perhaps you believe he loves you and cares for you, but anyone who is physically abusive certainly does not love and care for you because if they did they would not physically abuse you at any time.

However, this is now a personal choice you have to make about the clause for abuse and adultery and you have to decide that if he loves you that much you may have to agree to not include that clause and trust him.

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Family Lawyer: Law Educator, Esq., Lawyer replied 2 years ago

You could potentially claim that you were forced to sign or lose the baby and that was duress that would void your valid consent, but that would be an expensive argument in court with an attorney and litigation costs keep going higher. Typically people spend $40K and up now to fight these agreements, so you need to consider those costs down the line if a divorce occurs in trying to void the prenuptial based on duress.

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Customer reply replied 2 years ago
Looks like no other option then.
Family Lawyer: Law Educator, Esq., Lawyer replied 2 years ago

Thank you for your reply.

I am afraid there options, but based on what you are saying they are very limited.

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Family Lawyer: Law Educator, Esq., Lawyer replied 2 years ago

Thank you for your reply.

Please do not forget to leave positive feedback, as the experts are not employees of the site and get no credit for spending time with customers unless they leave positive feedback. Thank you.

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