Inheritance And Divorce

Posted: Monday September 23 2019

By: Guest Blogger

The death of a loved one can be devastating and is ranked as one of life’s most stressful events. Another high-ranking source of stress is divorce so what happens if the two combine: inheritance has been received or is due to be received but you are facing the prospect of divorce? Will your inheritance be shared with your spouse in the divorce or will it be ring-fenced and protected against any claim? When dividing a family’s finances upon divorce, a key consideration is whether the assets are “matrimonial” or “non-matrimonial”.

By Emma Davison – Invalesco Family Law

Matrimonial assets

Matrimonial assets are those which have been built up during the marriage irrespective of who provided the money with which they were acquired or accumulated the wealth. They can include assets such as the family home even if this is owned in the sole name of one of the parties.

Non-matrimonial assets

Assets that are not the product of the marriage may be regarded as being non-matrimonial.

How inheritance is treated will generally depend on when the inheritance was received, the extent, if any, that it has been mingled with any matrimonial assets and whether the matrimonial assets are sufficient to meet the needs of the parties and their children.

Timing

To be relevant, the inheritance would first need to already have been received or be imminently receivable. It is not sufficient, to argue that one spouse has a prospect of receiving a future inheritance if the person making the inheritance bequest has not died nor is terminally ill.

Division of assets

All the circumstances of the case will be taken into account with first consideration being given to the welfare of any child(ren) of the family.

The starting point is that all matrimonial assets will be divided equally.

Where there has been a mingling of assets, such as inheritance used to buy the family home, it is more likely to be deemed to be matrimonial and shared.

Where an equal division of the matrimonial assets adequately provides for the capital and income needs of each spouse and any children, this is likely to be how the case would be resolved.

Where needs of spouses and any children cannot be met by such an equal division, an unequal division of resources, or even recourse to the non-matrimonial assets, may then be appropriate.

If you want to protect an inheritance, you should consider entering into a pre- or post-nuptial agreement. Even then there is no guarantee that your inheritance will remain untouched but it will increase the chances.