TL;DR: Most states treat an inheritance as the recipient's separate property, but depositing inherited funds into a joint account or using them for shared expenses can turn them into marital property. A prenup lets you document and strengthen that separate-property treatment in advance. According to Cerulli Associates' 2024 wealth-transfer projections , an estimated $124 trillion in wealth is projected to transfer between generations by 2048, which makes inheritance planning a present-tense question for many engaged couples.If you're getting married and you've received an inheritance, or you expect to receive one from a parent or grandparent, you're sitting in the middle of one of the largest wealth handoffs in modern history. An estimated $124 trillion in assets is projected to transfer between generations by 2048, according to Cerulli Associates (2024), and roughly 55% of millennials expect to inherit money or assets within five years, according to a Citizens Bank survey conducted with Wakefield Research. That makes a quiet, everyday question into a planning question: how do you make sure what you inherit stays yours, without making the inheritance the center of your marriage?
A prenup is one of the cleanest tools for that. It puts the rules in writing before anyone has to guess, which is a kindness to both partners. If you're new to the topic, our prenup primer walks through the basics.
Why inheritance and marriage interact in unexpected ways The Great Wealth Transfer is not an abstraction. It's a backdrop for a specific decision most engaged couples will face: what happens to money that was given to one of you, by one of your families, after you say "I do." The default rules vary by state, and the rules themselves are less surprising than how easy it is to unintentionally opt out of them. A single joint deposit, a single mortgage payment, a single retitling of a deed, and the protection you assumed you had can shift.
That's why this conversation is worth having now, while the decisions are still hypothetical. The point of a prenup here is to make sure that the way an inheritance gets treated reflects what you and your partner actually want, rather than what a court has to reconstruct years later from bank statements.
The default rule: inheritance is usually separate property In nearly every U.S. state, an inheritance received by one spouse, whether before or during the marriage, is classified as that spouse's separate property. The American Bar Association's Family Advocate describes anyone likely to receive a significant inheritance as a candidate for a prenup for exactly this reason: the default treatment is favorable, but fragile.
Some states put this in statute directly. California Family Code §770 , for example, classifies property acquired during the marriage by gift, bequest, devise, or descent as the receiving spouse's separate property. Other states reach the same result through case law and the broader framework of equitable distribution. Most equitable-distribution states divide marital property fairly on divorce, and "equitable" doesn't always mean "equal," which is part of why predictability from a prenup has real value.
The important caveat: "usually" is not "always." Washington, for instance, allows judges in a divorce to distribute both separate and community property if doing so is just and equitable. That kind of wrinkle is why a generic assumption about how inheritance is treated can quietly fail in practice.
How commingling quietly turns separate property into marital property Commingling is the term for mixing separate property with marital property in a way that makes the two hard to separate. Transmutation is the related concept: the change of separate property into marital property, either intentionally or through how the property gets used during the marriage. Both can happen without anyone meaning for them to.
The behaviors that trigger commingling tend to look like ordinary financial life. A few of the common ones:
Depositing an inherited check into a joint checking account used for household expenses. Using inherited cash to pay down the mortgage on a jointly titled home. Retitling inherited real estate into both spouses' names. Investing an inheritance in a brokerage account opened jointly, or adding a partner as a joint owner of a previously separate account. Using inherited funds for shared bills over months or years, without records that distinguish what came from where. Once commingling has happened, the burden shifts to the inheriting spouse to trace what is still separate. Tracing is possible, but it tends to be expensive, slow, and dependent on the quality of years-old records. The cleaner move is to prevent the question from arising in the first place.
What a prenup can do that the default rules cannot A well-drafted prenup is designed to do three things the default rules cannot do on their own.
Define the inheritance as separate property in writing. A prenup can specify that any assets one spouse inherits, before or during the marriage, remain that spouse's separate property. That can include cash, real estate, investments, and family heirlooms. This puts the separate-property treatment in the agreement itself, rather than relying on default rules that can shift if facts get messy.
Address income and appreciation. Even if the underlying inheritance stays separate, the dividends, rent, or appreciation generated during the marriage can be treated as marital property depending on state law. This is a gap many people don't realize exists. A prenup can specify that income and appreciation from inherited assets also remain separate.
Choose how "family-purpose" use is treated. Most people who inherit money use some of it on things that benefit the household: a down payment on a home, a renovation, a shared brokerage account, a family vacation. A prenup lets you decide in advance how those uses get characterized. You can specify that any inheritance used for a family purpose is reimbursed to you on divorce, which keeps it separate in effect. Or you can designate the contribution as a gift to the marital estate, knowingly. Either choice is legitimate. The point is to make it on purpose rather than by accident.
The Uniform Premarital Agreement Act and its 2012 update, the Uniform Premarital and Marital Agreements Act, provide the framework for enforceable prenups in many states. According to the Uniform Law Commission , 28 states plus the District of Columbia have adopted some version of the UPAA or UPMAA, which means the basic mechanics of an enforceable inheritance clause look similar across much of the country, with state-specific variations layered on top.
Scenario
Likely default result (no prenup)
What a well-drafted prenup can do
Inheritance deposited into a separate account in your name only
Usually treated as separate property
Confirms separate-property treatment in writing, reducing future disputes
Inheritance deposited into a joint checking account
High risk of being treated as marital property due to commingling
Can specify that the funds remain separate even if commingled, and define tracing rules
Inheritance used as down payment on a jointly titled home
Often treated as a gift to the marital estate
Can designate the contribution as reimbursable on divorce, or as a gift, by choice
Dividends or rent generated by inherited assets during marriage
Treatment varies by state; often partially marital
Can specify that income and appreciation remain separate
Inheritance expected but not yet received
Default rules will apply when it lands
Can include a forward-looking clause classifying future inheritance as separate
Inheritance from a parent intended for children from a prior relationship
At risk if commingled with marital assets
Can preserve separate-property status to support estate-planning intent
Inheritances you expect but have not yet received A prenup is not limited to assets that already exist. It can include language stating that any future inheritance received by either spouse during the marriage will be treated as that spouse's separate property. You may not know the final amount, but you can disclose the expected source, any available estimate or range, and the rule the parties want to apply if the inheritance is later received.
Financial disclosure matters here. Most state laws governing prenups require that both parties disclose their financial circumstances honestly before signing. Disclosing a reasonably expected inheritance, even without specifics, helps the agreement hold up later. It also avoids the awkward future moment of a partner discovering, after the fact, that a multi-million-dollar transfer was always on the horizon and never mentioned.
If your expected inheritance involves a trust structure, the analysis gets more nuanced. A trust and a prenup do different jobs and often work best together. Our post on how a prenup affects a trust goes deeper on that overlap.
Frequently Asked Questions Is an inheritance automatically protected in a divorce? Usually, but not always. Most states classify an inheritance as the recipient's separate property, even if received during the marriage. That protection can disappear if the inheritance is commingled with marital funds, for example by depositing it into a joint account or using it to pay down a shared mortgage, at which point a court may treat all or part of it as marital property.
Can a prenup cover an inheritance I haven't received yet? Yes. A prenup can include language that any future inheritance received by either spouse during the marriage will be treated as that spouse's separate property. You generally cannot list a specific dollar amount, since the inheritance hasn't happened, but you can disclose that you expect one and set the rule in advance, which courts tend to view favorably.
What is commingling, and why does it matter for an inheritance? Commingling means mixing separate property with marital property so the two cannot be cleanly separated. A common example is depositing inherited cash into a joint checking account used for household expenses. Once funds are commingled, the burden falls on the inheriting spouse to trace what is still separate, which is hard, slow, and often expensive to prove years later.
What about income and appreciation from inherited assets? Even if the underlying inheritance stays separate, dividends, rent, or appreciation generated during the marriage can be treated as marital property depending on state law. A prenup can specify that income and appreciation from inherited assets also remain separate, which closes a common gap that surprises couples in divorce proceedings.
Do I still need a prenup if I plan to put my inheritance into a trust? A trust and a prenup do different jobs and often work best together. A trust shapes how assets are held and distributed, while a prenup defines how the marriage and a possible divorce will treat those assets. For most readers with trust structures, both tools are worth a conversation with counsel, and they tend to reinforce rather than duplicate each other.
What if I use my inheritance for something we both benefit from, like a down payment on a home? That is a choice you can make explicitly in the prenup. You can designate that any inheritance used for a family purpose is reimbursed to you on divorce, which keeps it separate in effect. Or you can treat the contribution as a gift to the marital estate. Either is legitimate; the point is to decide on purpose rather than by accident.
Where First fits in If you've received an inheritance, or you expect one, a prenup is one of the cleanest ways to lock in separate-property treatment before life gets complicated. The conversation matters more than the paperwork, and the paperwork still matters.
First was built for exactly this kind of planning conversation. No PDFs, no hourly rates, no back and forth with attorneys to schedule a first call. Both partners can connect with independent attorneys for review, pricing is upfront, and the inheritance language is something your attorney will work through with you specifically. If you want a practical next step, our prenup checklist is a good place to start, or you can read our longer background guide on the process end to end.
If you're ready, you can begin with First .
Methodology The wealth-transfer figure cited in this post is drawn from Cerulli Associates' 2024 U.S. High-Net-Worth and Ultra-High-Net-Worth Markets report, projecting transfers through 2048, accessed via Glenmede's published summary. State-law statements reflect general principles in most U.S. states as of 2026; specific statutes cited, such as California Family Code §770, are linked directly to the state code. Reader-specific outcomes depend on state law and individual circumstances and should be confirmed with a licensed attorney.
Sources First is not a law firm. The information and tools provided by First on this site are not legal advice and not a substitute for the advice of an attorney.
State laws change, and how an inheritance is treated in a divorce depends on the facts of the marriage and the jurisdiction. Confirm any specific question with a licensed attorney in your state.
