DIVORCE - WHEN IS AN INHERITANCE COMMINGLED

Belilos v Rivera, 2018 NY Slip Op 06223, Decided on September 26, 2018, Appellate Division, Second Department:

"A married party's inheritance constitutes separate property that is not subject to equitable distribution (see Culen v Culen, 157 AD3d 926, 929; Renck v Renck, 131 AD3d 1146, 1148). Where, however, as here, "separate property has been commingled with marital property [in a joint marital account], there is a presumption that the commingled funds constitute marital property" (Maddaloni v Maddaloni, 142 AD3d 646, 652; see Renck v Renck, 131 AD3d at 1148; Chamberlain v Chamberlain, 24 AD3d 589, 593). "To overcome a presumption that commingled property is marital property, the party asserting that the property is separate must establish by clear and convincing evidence that the property originated solely as separate property and the joint account was created only as a matter of convenience, without the intention of creating a beneficial interest" (Renck v Renck, 131 AD3d at 1149).

Here, the plaintiff established through her own testimony, the defendant's testimony, and copies of checks from her uncle's estate, that during the marriage, she inherited the aggregate sum of $150,000 from her uncle. The plaintiff deposited the inheritance monies into one of the parties' joint accounts merely because she did not have any bank accounts titled solely in her name. The defendant admitted at the trial that, at his deposition, he testified that he intended to return the plaintiff's inheritance monies to her when the instant litigation settled, and that he intended to make things "right" with respect to the plaintiff's inheritance. Thus, contrary to the defendant's contentions, he recognized the separate character of the inheritance monies, such that the presumption that the commingled funds were marital was overcome (see Matter of Brandt v Peirce, 132 AD3d 665, 667; Chamberlain v Chamberlain, 24 AD3d at 593)."