Every divorce client expecting a significant inheritance asks me the question. “My inheritance isn’t part of this, right?”
And every divorce client married to a spouse expecting a significant inheritance asks, “They are going to inherit millions. That has to count for something, doesn’t it?”
Both of those concerns are understandable and valid. They come up in New Hampshire divorce cases often, and they matter because they can have a real impact on how a case is resolved. The difficulty is that the answer is that it depends on more facts.
Trusts and inheritances do not fit neatly into a single category. They are not always fully included, and they are not always fully excluded. Instead, they sit in a middle ground where the details matter a great deal, including how the asset is structured, whether it has been received, and what rights actually exist. Once we can understand the details, the outcome is easier to predict.
The Bigger Picture: What the Court Is Actually Doing
Before getting too far into the specifics, it helps to step back and look at what the court is trying to accomplish in a divorce.
New Hampshire follows what is called an equitable distribution model. That means the goal is to divide property and debt in a way that is fair under the circumstances. It does not necessarily mean everything is split down the middle. It means the court is trying to reach a result that makes sense given the full financial picture of both parties.
One thing that often surprises people is how broad that starting point is. The court looks at everything that exists at the time of divorce. It does not matter whose name is on the account or exactly when something was acquired. The focus is on the overall financial situation.
That can include bank accounts, retirement assets, real estate, business interests, and in some cases, trusts and inheritances.
But looking at something does not mean it will be divided in the same way as everything else. That is where these issues become more nuanced.
Inheritances: Not Automatically Protected
A lot of people come into the process with the assumption that inheritances are automatically off the table. That belief is understandable. Inheritances often come from family, and there is a natural instinct to view them as separate from the marriage.
New Hampshire law does not take quite that approach.
Instead, the court asks a more practical question. What exactly is this interest at the time of the divorce?
That question becomes especially important when the inheritance has not yet been received.
Imagine a situation where a parent has passed away and one spouse is clearly entitled to inherit a significant amount of money, but the estate has not been finalized. The funds are not in their account yet. There is no check to point to. It is simply in progress.
A lot of people assume that means it does not count. But that is not necessarily how the court looks at it.
If the inheritance is vested, meaning it is certain to be received, the court can still consider it as part of the overall financial picture. That does not mean the other spouse automatically receives a portion of it. It does mean the court may take it into account when deciding what is fair.
You might see this play out in a situation where one spouse is about to receive a substantial inheritance while the other has no comparable assets. The court may adjust the division of other property to reflect that reality. The reasoning is not that the inheritance itself is being divided, but that the overall outcome should still be equitable.
When an Inheritance Is Too Uncertain
Now consider a different situation. Someone says they will eventually inherit money from their parents, who are still living. Maybe the parents are financially comfortable, maybe even very wealthy, but nothing is guaranteed. In that case, the situation looks very different from a legal standpoint. An expected inheritance that depends on future events is generally considered too uncertain to treat as a divisible asset. Courts are not in the business of dividing hypothetical future wealth. There are simply too many variables.
So while that expectation may exist in the background, it usually does not play a direct role in property division in the same way a vested inheritance would.
Trusts: Where the Details Really Matter
Trusts take this analysis to another level. People often refer to “a trust” as if it is one thing, but in reality, trusts can be structured in many different ways. Those differences are not just technical. They are often the deciding factor in how a trust is treated in a divorce. The key question is surprisingly simple, even if the answer is not. Does the person actually have a right to the money, or is it just a possibility?
A Trust That Will Pay Out
In some cases, a person has a clear, defined interest in a trust. For example, they may be entitled to receive a certain portion of the trust at a specific time or upon a certain event. Even if that event has not happened yet, the right to receive the money may be certain. In that situation, the court may treat that interest as a form of property. It may not have a present dollar value that is easy to calculate, but it is still something real.
This is similar to how pensions are handled. The benefit may be years away, but it is still considered part of the financial picture.
A Trust That Might Pay Out
Now consider a different kind of trust. In this version, the trustee has complete discretion over whether to make distributions. There is no guarantee. The beneficiary cannot demand payment. They simply have the possibility of receiving money at some point. That is a very different situation. In New Hampshire, this type of interest is often described as a mere expectancy. In practical terms, that means it is not treated as property. It is not something the court can divide. And that distinction matters. Because from the outside, both people might say they “have a trust,” but legally, they are in completely different positions.
Spendthrift Trusts and Added Protection
Some trusts go even further and include what is known as a spendthrift provision. This type of provision is designed to protect the trust assets from creditors and others who might try to access them. Under New Hampshire law, these provisions are generally respected. As a result, a beneficiary’s interest in a properly structured spendthrift trust is typically not considered marital property at all. That means it is not subject to division in the divorce.
Why These Interests Still Matter
Even when a trust is not divisible, it does not mean it is irrelevant. This is one of the more important points that people sometimes miss. If a trust is regularly providing income to a beneficiary, that income can still be part of the analysis when the court is looking at things like alimony or overall financial circumstances. For example, if someone receives consistent monthly distributions from a trust, it would be difficult to ignore that when evaluating their ability to pay support or their financial position compared to the other spouse. So while the underlying trust may be protected, its practical effect can still influence the outcome.
Transfers Into Trusts During the Marriage
Another situation that comes up from time to time involves assets that were placed into a trust during the marriage. When both spouses knowingly transfer assets into an irrevocable trust, those assets may no longer belong to either of them individually. That can take them outside the marital estate. However, the analysis changes if the transfer was not transparent. If one spouse moved assets into a trust without the other’s knowledge or consent, the court is not likely to simply ignore that. Even if the trust itself is not undone, the court can account for that transfer when dividing other property.
In practical terms, that means the outcome may be adjusted to ensure fairness.
Why These Cases Take More Time
Trust and inheritance issues tend to make divorce cases more complex, and there are a few reasons for that. First, the documents themselves can be difficult to interpret. Trust agreements are often detailed and written in technical language that requires careful review. Second, valuation is not always straightforward. Future interests, contingent rights, and discretionary distributions do not fit neatly into a single number. Third, timing plays a major role. Whether something is vested, contingent, or already received can completely change how it is treated. And finally, there is a personal component. These assets often come from family, and that can make negotiations more sensitive. Even when the law is clear, the emotional aspect can make resolution more difficult.
Bringing It All Together
When you look at all of this together, one theme stands out. Trusts and inheritances are not handled in an all or nothing way. They are evaluated based on what they actually represent. A guaranteed future interest may be treated very differently from a discretionary trust. A received inheritance may be viewed differently from one that is still uncertain. At the same time, even assets that are not directly divided can still shape the overall outcome. That is why these cases require a more careful, fact specific approach. The labels alone do not tell the full story. What matters is the underlying reality of the asset and how it fits into the broader financial picture.
Frequently Asked Questions
Is my inheritance automatically protected in a New Hampshire divorce?
Not necessarily. If the inheritance is vested or has already been received, the court may consider it as part of the overall financial picture, even if it is not divided directly.
Will my spouse receive part of my inheritance?
Not automatically. In many cases, the inheritance is not divided directly, but it can still influence how other assets are distributed.
What if I have not received the inheritance yet?
If it is certain that you will receive it, the court may still take it into account when determining a fair outcome.
Are trusts treated as marital property?
It depends on the structure of the trust. Some trust interests are treated as property, while others are considered too uncertain to divide.
What is a discretionary trust?
It is a trust where the trustee decides whether and when to make distributions. Because there is no guaranteed right to receive money, it is often not treated as a divisible asset.
What is a spendthrift trust?
It is a type of trust designed to protect assets from creditors and others. In New Hampshire, these are generally not considered marital property.
Can trust income affect alimony?
Yes. Even if the trust itself is not divided, regular distributions can affect support decisions.
What happens if assets were placed into a trust during the marriage?
If both parties agreed to the transfer, those assets may no longer be part of the marital estate. If the transfer was not disclosed, the court may adjust the overall division to account for it.
Are these cases more complicated than typical divorce cases?
Often they are. Trust structures, valuation issues, and timing considerations can all add layers of complexity.
Do I need an expert in these cases?
In many situations, yes. Especially where trust documents or valuation issues are involved, professional analysis can be important.
About the Author: Damian Turco is the Founder and Managing Partner of Turco Legal and has practiced divorce and family law since 2008.Damian Turco’s Bio Page | More Blogs from Damian Turco