Can my inheritance be claimed by my ex during or after our divorce?
In other articles we have discussed “Who Gets What’ in a Property Settlement which largely deals with the past and the present – who gets what based on what is available (the net assets available for distribution), each party’s contribution to those assets and/or to the relationship/family, as well as their ongoing future financial needs.
In this article, we consider and examine what happens to future inheritances in the separated or divorced world.
The broad but not definitive answer is that when it comes to future inheritances, they generally will not be subject provided that parties have finalised and formalised their division by way of a Court Order, Consent Order or Binding Financial Agreement.
However, there are variants to this broad principle that need discussion.
What Happens to Inheritance During Divorce proceedings?
As a starting point, we should discuss what happens to any inheritance pre-separation and/or while still married.
Often, inheritances come in the form of a lump sum cash payment and while the marriage or relationship is in tact, those monies are often co-mingled and deposited into a joint account or used for joint purposes.
Commingling need not be limited to cash but can also include houses, shares and/or other forms property.
Often, the determining factors as to whether an inheritance will be included or excluded from a property settlement will be the extent to which the assets were co-mingled and/or quarantined, the timing of the inheritance, whether both parties contributed to the inheritance and the size of the property pool otherwise available for distribution between the parties.
What Happens to Future Inheritance Under Divorce?
Broadly, any future inheritance which by implication means at a given point in the future once a divorce has been properly formalised/documented, will not be subject to division provided the parties have finalised matters by way of a Consent Order, Court Order or Binding Financial Agreement.
However, there are some circumstances in which the a court will or can set aside or vary orders previously made – ie Judges may exert discretionary powers under financial divorce settlements to bring future inheritance into the settlement pot.
By and large however, if future inheritances are covered in the Orders or the Agreement, it would make it more difficult for same to be set aside as it was contemplated at the time the agreement was entered into.
As untasteful as prenups and other financial safeguards may be to consider at first instance, they can provide peace of mind and a safeguard way of protecting future acquired assets, including inheritances.
If you need any help discussing family matters, divorce or property and financial matters, please call our team on 07 3837 5500.