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Inheritance & Divorce – Is My Spouse Entitled To My Inheritance?

In this article, we will look in more detail at what happens to inherited assets in divorce and answer the popular question "Can I protect my inheritance from my spouse".

Table Of Contents

    Is my spouse entitled to my inheritance when we get divorced?

    Inheritance, which is a non-matrimonial asset, isn’t automatically added to the ‘pot’ and is subject to division, unlike, for example, savings, pensions or joint property.

    This doesn’t necessarily mean that inheritance is entirely excluded from a divorce settlement.

    When it comes down to it, if money is inherited by either husband or wife during the marriage, whether or not it will be added to the matrimonial pot will depend upon several factors, including:

    • Passage of time – In a long marriage, where either party brings non-matrimonial property (money from inheritance) into the marriage, the source of these assets will become less important as time goes by and will gradually come to be seen as matrimonial property.
    • The mingling of property – Where the non-matrimonial property ends up being intermingled with matrimonial property over time so that it becomes difficult to distinguish one from the other, it is more likely that it will all be added to the matrimonial pot. This could be where a portion of the inheritance is used to purchase an investment as joint stakeholders, which then significantly increases in value over time.
    • Matrimonial home – If an inheritance is used to purchase a matrimonial home, this is more likely to be considered as having been added to the matrimonial pot and divided accordingly.

    Ultimately, the court looks to ensure that both parties can maintain a standard of living that is as close as possible to that enjoyed during the marriage.

    The factors above will generally only come into play if the matrimonial assets are adequate to meet the needs of both parties in terms of a financial settlement.

    Courts have wide discretion when deciding what’s fair and equitable in a divorce, which is why the answer isn’t always black and white.

    Courts use Section 25 of the Matrimonial Causes Act 1973 to guide their decisions on financial agreements in divorce proceedings.

    This section outlines the criteria that courts must consider when making financial orders, ensuring a fair distribution of assets and financial responsibilities between the parties.

    There is no strict formula, and each case is assessed on its individual merits. The overarching goal is to ensure that the financial settlement is just and provides adequate support to both parties, considering all the circumstances of the marriage and its breakdown.

    If the matrimonial property is insufficient, then the non-matrimonial property is more likely to be added to the overall matrimonial pot in order to cover the financial needs of both parties following the divorce – this is especially the case where there are young children involved.

    Learn more about the differences between how matrimonial and non-matrimonial assets are divided in divorce.

    It is important to note that there are no definitive rules when it comes to inheritance and divorce; the outcome will always be decided on the facts of the individual circumstances.

    Can my ex-wife claim inheritance after divorce UK?

    Yes, your ex-wife is entitled to make a claim for your inheritance if they have not re-married and a financial order was not approved by the court during divorce proceedings ending your financial ties as husband and wife.

    This is particularly relevant if the inheritance is received shortly after the divorce and financial matters are still pending.

    If you received the inheritance before or during the marriage, it could be considered in the divorce settlement.

    However, if you receive an inheritance after the divorce has been finalised and there is a financial settlement in place that includes a clean break clause, then it is less likely that your ex-wife can claim against your inheritance.

    Can I protect my inheritance from my spouse?

    Protecting your inheritance from being included in marital assets during a divorce can be complex, but you can take certain steps to increase the likelihood of it being protected.

    Ring-fencing inheritance in divorce is not easily achieved under English and Welsh law. Couples often utilise prenuptial and postnuptial agreements to protect inheritances, as they can stipulate how any inheritances will be treated in the event of death or divorce.

    While not automatically legally binding in the UK, courts are giving increasing weight to them, provided they are fair, both parties have received independent legal advice and full financial disclosure has been made.

    Avoid commingling inherited money with marital assets. In other words, do not deposit it into a joint bank account. Keeping it separate can help to establish that the inheritance is not intended to become a joint asset.

    If the inheritance is used to purchase property, a declaration of trust can specify what share of the property is considered separate due to the inheritance funds contributing to the purchase.

    If you’re separated but not divorced, you should refrain from using any inheritance until the court has approved a financial order. Any inheritance after separation but before divorce can be treated as marital property if it hasn’t been kept separate.

    I refer to my previous statement about ‘needs’. Are there enough financial resources in the marriage that any use of inheritance is unnecessary?

    Ultimately, you should always seek legal advice when dealing with complex issues such as inheritance and divorce. 

    If any inheritance is received, it can be helpful to document the intention that the inheritance is to remain separate from marital assets.

    This could involve keeping a written statement or evidence that the benefactor intended the inheritance to be for you alone and not for the marital estate.

    Summary of methods to protect an inheritance:

    • Sign a prenuptial or postnuptial agreement
    • Put an inheritance into a trust
    • Avoid mingling and keep the inheritance separate

    Is inheritance included in a divorce settlement?

    As a rule, assets that are acquired during a marriage or a civil partnership are added to the ‘matrimonial pot’ and then divided upon divorce or dissolution.

    However, when it comes to inheritance and divorce, any assets that have been inherited are often treated differently by courts in the context of divorce.

    The precedence for this was set out in the case of White v White in 2000 which stated:

    “This distinction is a recognition of the view that property owned by one spouse before the marriage, and inherited property whenever acquired, stand on a different footing from what may be loosely called matrimonial property.”

    Why was White v White important?

    White v White is an English family law decision by the House of Lords and is regarded as a landmark case in the redistribution of finances as well as property on divorce.

    Landmark cases are important because they change the way the constitution is interpreted – decisions made by the Supreme Court are referred to and influence how judges rule in new cases.

    What principle did the House of Lords reject in White v White? 

    The landmark case involved a couple who were granted a divorce in December 1995 and had assets exceeding £4.5m which was deemed more than needs for their reasonable requirements.

    During the case of White v White, the following rationale was set out:

    When considering the division of the matrimonial pot, inherited wealth (considered ‘non-matrimonial property’) will be treated differently to assets acquired through work, property, investment, and business endeavours during the course of the marriage (called ‘matrimonial property’) in any divorce settlement. The court acknowledged the view, widely but not universally held, that:

    “Property acquired before marriage and inherited property acquired during marriage come from a source wholly external to the marriage. In fairness, where this property still exists, the spouse to whom it was given should be allowed to keep it. Conversely, the other spouse has a weaker claim to such property than he or she may have regarding matrimonial property.”

    In other words, the judge should take inherited wealth (considered ‘non-matrimonial property’) into account and should decide how important it is in the particular case.

    The nature and value of the property, and the time when and circumstances in which the property was acquired, are among the relevant matters to be considered.

    However, it should be noted, that this factor can be expected to carry little if any weight in a case where the claimant’s financial needs cannot be met without recourse to this property.

    Is future inheritance after divorce considered?

    In general, future inheritance is not taken into account when it comes to deciding on a divorce settlement.

    However, if a significant future inheritance is known about and expected, the courts may delay a decision on the final sum. 

    More importantly, if one party suddenly comes into a large sum of money following the divorce (eg through an inheritance or lottery win) their ex-spouse may potentially be able to claim a portion, even many years after the divorce.

    As we mentioned previously, one way to help prevent these types of claims is by obtaining a financial order from the court.

    Inheritance during marriage

    Although there are many legalities regarding inheritance and divorce, many individuals will have their own opinions in regard to inheritance during marriage and whether they should share it with their spouse when divorcing.

    Many believe that it’s solely theirs to keep if it’s been passed on from their individual family member while others may feel that although they’re divorcing, their spouse should receive an adequate share of their inheritance.

    Many couples are able to make their own decision in regards to what they want to do with their assets in a divorce.

    Furthermore, if this is the case it’s vital that you obtain a financial consent order to ensure no further or future claims can be made against either party.

    This details what you both have chosen to do with your assets in a legally binding agreement and will also prevent any future claims from being made against one another in the future.

    Do I have to tell my ex if I receive a large inheritance?

    If you have already finalised your financial settlement and it included a clean break clause, which means that neither party can make any further financial claims against the other, you typically don’t need to disclose an inheritance received.

    If there is no clean break clause or ongoing maintenance payments, the situation may be different, and you should seek legal advice.

    If an inheritance is received after a financial settlement is approved, it is generally considered a post-divorce windfall and is not subject to claim by your ex-partner.

    However, it is always wise to seek legal advice to ensure you understand your obligations and the implications of any post-divorce windfalls on your financial situation.

    What happens if excluding inherited assets puts one party in a much stronger financial position?

    As mentioned above, the key decision for the courts will be to ensure that there is sufficient distribution of assets in any financial settlement to meet the needs of both parties.

    If excluding the inherited assets of one spouse means that the other spouse is left out of pocket, then it may be necessary to add the inherited property (or a portion) to the matrimonial pot.

    The ring-fencing of inherited assets away from the matrimonial pot is more likely to take place if the inherited assets have been stored separately and are not needed to meet the parties’ needs in divorce.

    The level of financial settlement considered to meet the needs of both parties will differ widely on a case-by-case basis. If the married couple became accustomed to a certain level of affluence in terms of their lifestyle this will generally be taken into account.

    However, this does not necessarily mean that it will be considered unfair if one party is left in a much stronger financial position due to their own personal inheritance; the courts will look at ‘needs’ rather than equality of division when it comes to non-matrimonial property.

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