Are Inheritances Always Protected in a Virginia Divorce?

 Posted on July 08, 2026 in Property Division

Inheritances are often protected from division in a Virginia divorce. However, that protection is not automatic and can be lost depending on how the inherited assets were handled during the marriage.

If you're heading into a divorce in 2026 and are concerned about an inheritance, a Prince William County, VA asset division attorney can explain your options.

How Does Virginia Law Classify Inherited Property in a Divorce?

Virginia divides property in divorce following a model known as equitable distribution. This means the court sorts everything a couple owns into one of three categories. These are separate property, marital property, or hybrid property.

Separate property is whatever each spouse owned before the marriage. It stays with the spouse who owns it. Marital property is whatever is acquired during the marriage. Assets that fall under this category are divided by the court. Hybrid property contains both separate and marital interests. Homes, businesses, retirement accounts, and investment accounts commonly become hybrid assets over time. The marital part of the asset will be divided by the court.

Virginia Code § 20-107.3(A)(1) specifically defines separate property to include all property received during the marriage "by bequest, devise, descent, survivorship or gift from a source other than the other party." In other words, an inheritance legally belongs only to the spouse to whom it was given. Whether an inheritance is received before or during the marriage, it is generally classified as separate property. It may not remain separate property, however, depending on how it is handled during the marriage. 

What Can Cause an Inherited Asset to Become Marital Property in Virginia?

Mixing of marital and non-marital property is not uncommon over the course of a marriage. Called "commingling," this can happen in several ways:

• Depositing inherited money into a joint bank account that is used for household expenses

• Using inherited funds to pay down the mortgage on a home both spouses own

• Purchasing an asset with inherited money and putting both spouses' names on the title

• Retitling an old asset under both spouses’ names, which often recategorizes an asset as marital property

• Adding a spouse to the deed, title, or account tied to an inherited asset

• Mixing inherited investment funds with marital investment accounts

Virginia law allows a spouse to trace inherited funds back to their source. Even if commingling occurred, some or all of the inheritance may still be treated as separate property if it can be successfully traced. This generally requires detailed financial records. The spouse claiming that an asset is separate property has the burden of proving it.

How Can You Protect an Inheritance During Marriage?  

The best protection is to maintain clear separation between inherited and marital assets. Keep inherited funds in a separate account rather than depositing them into a joint account. Be cautious about titling assets or putting multiple names on assets purchased with inheritance money. Only do so if you are very confident that you want them treated as marital property.

If you're concerned about what will happen to an inheritance you received before a marriage, a prenuptial agreement may be a good fit. A prenuptial agreement can define how an asset will be treated if the marriage ends. If you receive an inheritance after your marriage, a postnuptial agreement can accomplish the same thing.

What Can You Do to Protect an Inheritance During Divorce in Virginia?

If you are approaching divorce and have commingled assets, you still have options for preserving your inheritance. Gather as many financial records as possible showing when the inheritance was received, where it was deposited, how it was used, and whether any assets purchased with it were jointly titled. Keep copies of the original inheritance bequest.

An attorney will help you with tracing records of your assets. If needed, you can also hire a forensic accountant to help you trace where inherited assets have mixed with marital assets.

Call a Fairfax County, VA Divorce Attorney Today

It is possible to protect an inheritance from division in a Virginia divorce. Depending on the situation, doing so may require careful documentation and professional input.

Our Prince William County, VA asset division lawyer has more than 15 years of family law experience. Every case will be personally handled by Attorney Burns. Call Nicole M. Burns, Attorney at Law at 703-373-4761 to schedule your consultation today.