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

Divorce can be stressful, even without the worry of your financial situation and not knowing what will happen to your inheritance.

Inheritance and divorce are related since one partner could inherit something which is used as part of the divorce process or settlement. There will usually be an argument that inherited assets are not part of the matrimonial assets up for division.

Even if inheritance takes place before marriage, the financial assets received could be mixed up with other matrimonial assets. Due to this, one spouse might want to claim rights to the inherited assets in the event of divorce.

If you want to find out how to protect your assets before marriage, check out our dedicated article.

What can be included in an inheritance?

Inheritance refers to assets that an individual passes to their loved ones after their passing; these can include the following:

• Inherited money which encompasses any financial assets or cash left to beneficiaries.
• Investments (stocks, shares, bonds, etc.)
• Vehicles
• Houses or other properties
• Antiques
• Art

Can my spouse benefit from my inherited assets?

Assets could transition from non-matrimonial to matrimonial property, especially if the inheritance took place before or during the marriage. Matrimonial property refers to assets acquired during the marriage, which are subject to division between both parties in a divorce settlement.

You may argue that your inheritance is a non-matrimonial asset and should not be included in the matrimonial pot in the divorce settlement.

Non matrimonial property, distinct from the matrimonial property, includes assets acquired outside the marriage or civil partnership, such as inheritance, and its inclusion in the divorce settlement depends on various factors aimed at ensuring both parties' financial needs are met.

However, the other party in the divorce may have a claim to the inheritance if they benefitted from it during the marriage, and if it was held in a joint account.

If the inheritance was received during a short marriage, or after the breakdown of the relationship, then it is less likely to be included in the matrimonial pot and therefore the divorce settlement.

Whether or not inheritance will be added to the matrimonial pot depends on the following factors:

• Passage of time: Where either party brings non-matrimonial assets into the marriage, the source of these assets becomes less important as time goes by, and the marriage becomes longer. It will gradually be seen as matrimonial.
• Mingling: Non-matrimonial assets or property end up intermingled and added to the matrimonial pot over time so it would be difficult to distinguish one from another. This can come into play when a portion of inheritance is used to jointly invest in something which ends up increasing in value over time.
• Matrimonial home: If inheritance is used to purchase a matrimonial home, it’s more likely to be considered as in the matrimonial pot and divided accordingly in divorce.

Courts tend to approach these cases as if the inheritance was any other financial asset, intending to meet both parties' individual circumstances and any children’s reasonable needs. Typically, if there is an inherited property involved, then it can be kept by the individual who inherited it.

Suppose the matrimonial assets are not sufficient to provide for both parties’ reasonable financial needs. In that case, the court can act with non-matrimonial assets which includes inheritance, to guarantee a fair balance of distributed financial resources.

Matrimonial assets: Navigating inherited funds in divorce

In divorce proceedings, matrimonial assets - acquired during marriage - are subject to fair distribution. However, assets bought with inherited funds present a more complex scenario.

Inherited funds are considered separate from other assets if they are held in a separate account. To ensure that your inheritance remains separate from joint assets, it can’t become mingled with any marital assets (a joint account).

If you receive any inheritance funds and deposit them into a joint account that you share with your spouse, even if you have intentions to transfer out of the joint bank account later, the inherited funds could become a marital asset.

The duration of the marriage influences any court decisions as well, because the longer the marriage, the more likely both sides have mingled assets whether inherited or not and this is all taken into account in the marital estate.

Since accidentally mixing your inheritance can easily happen, it’s best to seek professional advice. A specialist can advise you on how to open and maintain your account or trust and can guide you through any potential pitfalls that you come across.

Keeping inheritance separate can be time-critical if you think you may be heading for divorce.

Is my spouse entitled to my future inheritance?

Future inheritances are not generally considered when a couple is divorcing, but that isn’t always the case. If the person giving the inheritance is expected to die soon, and the amount of inheritance received is significant, this might mean that the inheritance could form part of the divorce settlement.

In some cases, courts could adjourn the financial settlement until the party in question receives the inheritance.

An ex-spouse can still be entitled to claim on the other spouse's future inheritance after a divorce has been finalised if there was no clean break order or consent order put in place.

Getting a clean break order is usually a better solution than agreeing to continue paying spousal maintenance for years. As part of asset balancing in a divorce settlement, you might agree that your spouse receives a larger share of the marital home or receives more money in place of paying maintenance.

A lot of divorcing couples find financial independence liberating, and both parties are likely to agree to a clean break of financial ties to help reduce any future conflict and uncertainty surrounding payments.

This is an effective method of protecting any future inheritance or success from an ex-partner whom you have already divorced. While the likelihood for most people of inheriting a lot of money, winning the lottery, or building a hugely successful business is low, it does remain possible. A clean break order ensures there is a lower risk of losing any foreseeable future earnings or inheritance.

What happens to inherited property in a divorce settlement?

If there are enough assets to provide for both parties’ reasonable needs, generally the inherited property will be kept by the person who received it.

However, since the family home is considered a matrimonial asset, if the property is used as the family home or if inherited funds were used to purchase the home, then it will be mingled with the family’s finances and therefore the originally considered non matrimonial assets are included in the divorce settlement.