Is My Ex-Spouse Entitled to My Inheritance?

22 May 2017

Before you get married, anything that you own in your sole name is considered to be your separate property. But when you get married, most assets become available as joint property which could potentially be included in a Financial Settlement, meaning they could be split between you and your ex following divorce.

Inheritance is not automatically included as part of the ‘joint matrimonial pot’, but in certain circumstances Family Courts in England and Wales have the discretion to make it available for ex-spouses.

The Court’s priority when determining a Financial Settlement is to ensure that the needs of both people are met. Where there are insufficient means to do so, the Court may well consider that a spouse should benefit from the other’s inheritance, particularly where there are young children to provide for.

Although each case is examined on its own merits, there are many factors that the Court will take into consideration, some of which are outlined below.

Inheritance Received Before or During Marriage

Where the inheritance was received before the marriage, an ex-spouse may be entitled to make a claim on it if they had received the benefit of the inheritance throughout the course of the marriage. If you want to prevent this from happening, it may be possible to enter into an agreement prior to the marriage in order to ring-fence the inheritance from future claims. You can do this with a Pre-nuptial Agreement.

If inheritance is received during the course of the marriage, the Court is more likely to determine the inheritance to be joint property if, for example, it was money held in a joint account or property transferred into joint names. The assumption would then be that during the marriage the inheritance was seen as a benefit to the family, rather than the individual.

Inheritance Received after the Marriage

If inheritance is received after the breakdown of the marriage, or during a short marriage, it is more likely that the Court will exclude it from the matrimonial pot. Future inheritance is also usually excluded unless the expected inheritance is so great that it would make a substantial difference to the Financial Settlement reached. This can also be the case where there are no real assets of the marriage from which a settlement can be derived. In extreme circumstances, the Court could make the decision to adjourn proceedings until the inheritance has been received.

The Court will generally consider the value of the inheritance, when it was received and what each person realistically needs in respect of financial provision. Where an ex-spouse has re-married, there will not be any opportunity to make a claim on future inheritance as any entitlement to financial claims expires on marriage.

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