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Divorce and Inheritance - do they have a claim?

View profile for Josh Russell
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An area that is often taken for granted in separating couples is the question of whether they are entitled to their spouse’s inheritance. The common theme seems to be that people assume they have an entitlement to anything held in their spouse’s name, regardless of the source.

The reality

In actual fact the question of what you are entitled to in the event of divorce is not always as straightforward as first thought. I have touched on this area briefly in my previous blog but the reality of many family cases is that each case is different and will depend on the circumstances surrounding it.

The main factors in determining whether inheritance received by one or both of the spouses should be included with division of assets are as follows:

1.    When the inheritance was received
Where inheritance is received just prior to the breakdown of the marriage or in some cases, after the marriage has broken down, this is much less likely to be included as an asset for division in the event of divorce.

2.    How the inheritance has been used, if at all
If the inheritance has been transferred into a joint account or into joint names of the husband and wife, or used for the benefit of the marriage (for example, paying for improvements to the home) either all of, or some of the inheritance may be included as an asset for division in the event of divorce.

3.    The size of the inheritance and the financial needs of the parties
As is the case with much of matrimonial finances, the needs of the family will be the primary concern for the Court. If there are substantial assets derived from the marriage and these assets are able to meet the needs of the parties, the inheritance is less likely to be divided between the parties.

Protecting your inheritance

There are a number of ways to ‘protect’ any inheritance you receive either prior to the marriage, during, or shortly after a marriage has broken down but these can often be complex. The key point to take away is not to take it for granted that the inheritance you receive will (or will not) form part of the assets to be divided upon divorce.

If you wish to protect inheritance you have received, or expect to receive in the near future or want further advice on the above issues please contact one of our family law experts on 01295 270999 (Banbury Office) 01869 252 161 (Bicester Office) 01788 579 579 (Rugby Office).