Can my ex claim my inheritance after divorce?
It’s a question that we hear when couples split, and there are several factors that the Court will consider when this scenario arises.
Depending on when the inheritance was received, how it was used, and in whose names it was left, will all affect whether an ex-spouse can make a claim on inheritance when divorcing and calculating the total asset pool.
It is worth noting that in most cases, a future inheritance does not generally form part of the asset pool when it comes to property settlement. So if you will be receiving an inheritance in the future, but at the time of your divorce, it is not yet due to you (i.e. the benefactor is still alive), this will generally not form part of the asset pool and your ex can’t usually claim your inheritance after divorce. This is because wills can be changed at any time, and have no legal effect until the death of the testator.
Let’s take a look at how inheritances can be treated after divorce and if and when your ex can claim your inheritance after divorce.
Inheritance & Divorce – Factors Considered By The Court
A number of key factors will usually be considered by the Court when it comes to whether an ex can make a claim on an inheritance.
When Was The Inheritance Received?
When the inheritance was received can play a large role in deciding on whether an ex can make a claim on an inheritance during a divorce.
Before the relationship
If an inheritance was received before the relationship began, or in the early days of the relationship, it is likely to be considered by the Court as an initial contribution to the relationship. This means that it will usually be included in the total asset pool when it comes to asset division after divorce.
During the relationship
If the inheritance was received during the relationship, before the separation, how it was used will be taken into account by the Court. Was it spent on jointly owned assets, such as a family car, home improvements etc.? Or was it spend solely for the benefit of the recipient?
Close to or after separation
If an inheritance was paid close to the end, or after the end of the relationship, it would usually be more difficult for an ex-spouse to make a claim to the inheritance.
What Is The Total Asset Pool?
The size of the total asset pool with and without the inheritance can also have a bearing on the Court’s decision as to whether it is included for division at property settlement.
Where the joint asset pool is noted as being significantly smaller than the inheritance received, the courts may choose to include the inheritance to ensure a fair property settlement for both parties.
The Relationship Between The Benefactor And Both Spouses
The Court will often also consider the relationship between the benefactor and the spouses, more specifically the ex who is making the claim.
If they generally had a good relationship, or if the benefactor lived with both partners and was cared for by the ex as well as the heir, could affect if the inheritance is placed in the total asset pool for property settlement.
What Were The Benefactor’s Intentions?
Again, the relationship between the benefactor, heir and ex comes into play when the Court considers the benefactors intentions.
Did they mean for the inheritance to be used by the whole family, if they had a good relationship with both the heir and the ex-spouse? If so, the inheritance may then form part of the total asset pool for division fairly.
How To Safeguard Your Inheritance
Putting a binding financial agreement in place can help you safeguard any assets including an inheritance. A binding financial agreement can set out any terms of financial settlement in the future should you and your spouse choose to separate or divorce.
In it, you can agree to whatever terms you choose when it comes to splitting your assets, such as savings, property, physical goods, and any inheritance as well.
If no binding financial agreement is in place, you can choose to file a consent order to decide on how to split your assets, or just the inheritance. Consent orders must have fair and just terms, unlike binding financial agreements, which merely set out your agreed terms, where one party may receive a much more substantial settlement than the other, as long as both parties agree to it.
Do you want to talk to a family lawyer in Perth about what might happen to your inheritance when you divorce? Are you worried about your ex claiming your inheritance after divorce?
Get in touch with Hickman Family lawyers today for a free information call now.
Note that this blog is not intended as advice and professional legal advice should be sought for your individual circumstances.