Inheritance and Divorce

Divorce often leads to mixed emotions including feelings of anger and hatred and what could be more upsetting is when one partner wishes to claim the other partners inheritance and divorce. Separating partners will often be dealing with the division of assets and child arrangements as part of their divorce proceedings which could lead to further stress. One partner may have inherited some assets or may be looking to acquire some inheritance and may be concerned how inheritance and divorce are related.

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What is inheritance?

Inheritance is traditionally referred to as assets or finances which one person receives upon the death of a relative. Inheritance could be received from the estate of a decedent or as a beneficiary of a will or trust. 

What can be included in an inheritance?

Inheritance refers to the assets that one individual may pass to their loved ones following their death. Inheritance can include the following items:

  • Cash
  • Investments in the form of stocks, shares or bonds
  • Jewellery
  • Vehicles and automobiles
  • Antique assets and even
  • Real estate including houses or other properties.

How is inheritance and divorce related?

When a couple divorce, one may often question how are inheritance and divorce related. Inheritance and divorce are related as anything one partner inherits, may be used as part of a divorce settlement. Although the partner who has inherited assets will usually argue that inherited assets are not a part of the matrimonial assets which are up for division.

Inheritance can take place before a couple marry or can be acquired during the marriage. Even if inheritance takes place before a marriage, the inherited assets could get mixed with other marital assets. For this reason, one spouse may want to claim rights to the other partners inherited assets and funds.

Is a spouse entitled to inheritance money?

Is a spouse entitled to inheritance money is a common question asked during the course of a divorce. Ordinarily before you get married, anything you inherit is considered to be your separate property. However once married most assets become joint marital property. In such cases if the inherited assets become part of the joint property, they could be subject to a split following a divorce.

In England and wales inherited property does not automatically be counted within the marital pot. It is up to the discretion of the court whether they make inherited property available for a spouse.

When considering whether a spouse entitled to inheritance money the courts will consider that the needs of both separating partners are met. Where other marital assets are not sufficient to meet the needs of the separating partners the court is at liberty to consider that one partner should benefit from the others inheritance. In such a situation there may be a case for spouse entitled to inheritance money. This usually occurs where there are children to a marriage, as their needs take priority.

Is a spouse entitled to inheritance money received before or during marriage?

When considering inheritance and divorce, there may be a case for spouse entitled to inheritance money which was received before or during the marriage. This could result in a possible claim on inheritance after divorce. A spouse may be able to claim inherited money after divorce where they had benefit from the inheritance during the course of their marriage. Although this inheritance was acquired before the marriage one partner may successfully pursue inherited money after divorce if they can prove the inheritance was used in the marriage for the benefit of the family.

Where an inheritance took place during the course of the marriage again there could be a case of spouse entitled to inheritance money and they could possibly claim on inheritance after the divorce. In order to successfully achieve this, they would need to show the court that the inheritance was seen as a benefit to the family rather than the individual. This usually applies to instances where inheritance money or assets were held in joint bank accounts or the property was transferred into joint names.

What happens to inheritance received after the marriage?

Any inheritance received after a divorce or separation is likely to be excluded from the matrimonial pot as this inheritance will not have intermingled with the matrimonial assets. Furthermore, on inheritance received after a divorce a spouse may not be able to claim on inheritance after divorce given that they would not have received any benefit from such inheritance given that they had separated.

Only in extreme conditions a spouse may pursue inherited money after divorce. This is usually where the inheritance would make a substantial difference to the financial settlement. This is usually where there are no real assets from the marriage from which a settlement can be reached. The courts may decide to adjourn the financial proceedings until the inheritance has been received in order to consider the inheritance and divorce.

Is my spouse entitled to half of the inheritance?

Often when separating spouses are concerned about whether a spouse is entitled to half of the inheritance. As discussed above the courts may consider a spouse entitled to half of the inheritance if the inheritance took place before or during the marriage and formed part of the matrimonial assets. A spouse entitled to half of inheritance may only take place where the inheritance was used as a benefit to the family during the course of the marriage or the inherited assets were held jointly.

If there are children from the marriage, and the needs of the partners cannot be met with the matrimonial assets alone then when considering inheritance and divorce the courts could state that a spouse entitled to half of the inheritance. The 50/50 split when considering inheritance and divorce is only considered as the starting point. There may be circumstances in which case your spouse may receive a lesser or a greater share. In such situation the courts have the discretion to consider how inheritance and divorce settlement is to be divided.

How to protect children’s inheritance from divorce?

Quite often one partner who received inheritance from a family member or a loved one may want to ensure this inheritance is passed to their children. In such a case a partner may want to prevent a claim on inheritance after divorce from a spouse and may want to protect children’s inheritance from divorce.

Inherited property can be protected from divorce if it is not mixed with marital assets. This will require one partner to ensure any inheritance money is kept in a separate account and any other assets are held in their sole name. This will enable a parent to protect children’s inheritance from divorce if they only want their children to benefit from the divorce.

Another way to protect children’s inheritance from divorce is by entering into a pre-nuptial or post nuptial agreement with the spouse. If agreed this may allow the inherited money and assets to be excluded from the marital assets which could again prevent a claim on inheritance after a divorce.

Another common way to protect children’s inheritance from divorce is to place the inheritance in a trust. You will need to name your children as the beneficiary. As long as you have kept your inheritance separate from the marriage and created a trust for the benefit of your children then this inheritance can be protected and your spouse may not have a claim on inheritance after divorce.

Contact us today to discuss your inheritance and divorce rights

At Kabir Family Law, we specialise in all aspects of divorce law. Our specialists can provide you with the advice you need on how your inheritance is likely to be treated in the course of a marital break down. We may also provide advice on how to protect your inheritance from a divorce if it is to be placed in benefit of your children rather than your spouse. With family lawyers in Northampton as well as across the UK we are proud to have the national strength to deal with family law matters. Contact us today on 0330 094 5880 to discuss your options or let us call you back.