Monday, August 28, 2006
The Alaska Supreme Court takes a flexible approach to the questions of whether it is proper to consider prospective inheritance in a property division. The court noted that the issue is one that has split American jurisdictions, with a majority of American jurisdictions regarding expected inheritance as too uncertain to be used as a factor in property division. However, the court decided to take the approach of a substantial minority of states, and concluded that "it is not inherently improper for a court to consider the possibility of inheritance in some cases. Because property divisions cannot be reopened, however, courts must be cautious in using this factor." The court outlined factors the court should consider:
An absolute prohibition on considering prospective inheritance is unwarranted, but we think any such consideration (1) must be limited to immediate family members, (2) must be limited to inheritances that are not just possible but virtually certain, and (3) must treat the prospect as simply one factor and not give it inordinate weight. The likelihood of inheritance should not lead to a greatly disproportionate division of assets; but if inheritance is virtually certain, the court may give it some weight in considering how to divide the property.
Krize v. Krize, 2006 Alas. LEXIS 123 (Alaska Supreme Court August 25, 2006)
Opinion on web (last visited August 27, 2006 bgf)