Divorce – is my ex-partner entitled to half of my inheritance?

When facing divorce, individuals often worry about the fate of their assets, especially inheritances. Divorce can be a complex and emotional process, and protecting your inheritance from being divided can seem like a daunting task. However, with the right knowledge and steps in place, it could be possible to secure your legacy and safeguard your inheritance during a divorce.

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

Many people question if inheritance needs to be shared during divorce and the short answer is it all depends on the circumstances.

If the inheritance was received during the marriage it depends on whether the inheritance was “mingled” with other matrimonial assets. For example, if the inheritance was used to buy the matrimonial home, pay off the mortgage or was spent on family holidays, then it has most definitely been mingled with other matrimonial assets and could therefore be treated as a matrimonial asset.

Alternatively, if the inheritance was placed in a separate sole account in your name and was never used as a matrimonial asset then it can be argued that the inheritance was, and is, a non-matrimonial asset.

The concept of matrimonial and non-matrimonial assets has a place in cases where there is more money available, but arguably has no place in cases where the parties combined financial needs outweigh the matrimonial assets. In cases where there is plenty of money available, the non-matrimonial assets can essentially be considered ringfenced.

The financial needs of the parties are considered very important by the Court, and if it is not possible to meet the joint needs of the parties from matrimonial assets then the Court will also look at the non-matrimonial assets and could invade these. The court will consider the housing needs of the parties and if there is an unmet housing need, not enough money to reasonably house the parties, then the Court may need to consider the non-matrimonial assets.

Can my ex wife claim money after divorce?

In the event that you receive an inheritance after divorce, your ex-spouse may still be able to make a claim. Assuming that the divorce itself has been finalised either by Final Order or Decree Absolute (formally the final divorce order prior to the no fault legislation) this does not terminate financial claims. If, however, there has been an Order of the Court either by consent or following a contested hearing that may well include provisions dismissing one or both party’s future claims against the other party.

Can my ex wife claim money after divorce if I remarry?

Another consideration is if the person wishing to make the financial claim was Respondent to divorce and has remarried, then they lose the right to pursue such a claim (unless they have issued their financial application prior to remarriage).

Assuming none of the above factors apply to deny the ex-spouse the right to make a financial claim, then the consideration of matrimonial and non-matrimonial assets will still apply. Clearly an inheritance received long after divorce cannot be said to be a matrimonial asset, but the Court’s consideration of financial needs may still take precedence over such arguments relating to matrimonial/non-matrimonial assets.

Another area for consideration is the future inheritance prospects of one or both parties to the marriage. Whilst this can be taken into account by the Court it often has little effect on the overall outcome, it is quite legitimate for Courts to take the view that the relative in question could live for another thirty years and there is absolutely no guarantee that they will either have any assets left by the time they die (perhaps all spent on nursing home fees), or alternatively may choose to leave their estate to someone other than the party going through divorce.

Pre-emptive Measures Before Marriage

One of the most effective strategies to ensure the protection of your inheritance is the drafting and signing of a nuptial agreement, these can be pre or post nuptials. This legal document serves as a clear and structured outline of how assets, including any inheritances one might receive, will be managed and divided in the unfortunate event of a divorce.

Engaging in discussions about a prenuptial agreement before marriage might seem daunting or even counterintuitive to some, cloaked in the misconceptions that it implies a lack of trust or anticipation of failure. However, it is, in essence, a proactive measure—a manifestation of mutual respect and understanding that acknowledges the complexities of life while ensuring the protection of individual legacies. It establishes a foundation of transparency and clarity, elements that are invaluable not just in the protection of assets but also in fostering a healthy, open relationship.

By setting these agreements in place before the wedding, both parties can enter into marriage with a solid understanding of how assets will be treated, should circumstances change.

Although nuptial agreements hold a very important role they are not strictly legally binding and may not always be adhered to. They require review and amendments often especially when circumstances change such as having children.

Maintaining Separate Assets

It is important to understand that inheritance differs to other assets and can be considered non matrimonial if it has been kept separate. It is a disciplined approach, avoiding the blending of these funds with joint accounts or expenditures, thus maintaining their distinct nature.

The act of keeping inheritances separate is not just a financial strategy but a protective measure. Should you invest or purchase assets with the inheritance, you ought to consider marking these separate too or if you have a nuptial agreement, amending the agreement to reflect the position.

Its advisable to keep clear records of assets and decisions made regarding inheritance.

In the vein of maintaining the integrity of your inheritance as separate property, legal documentation plays a crucial role. By explicitly designating your inheritance as separate property through legal channels, you reinforce its immunity from being entangled in the division of communal assets.

These measures, albeit seemingly laden with legal formalities, underscore a commitment to preserving individual legacies whilst fostering transparency and respect during marriage.

Post-Divorce – Future inheritance after divorce

Following the conclusion of your divorce and financial separation be it with a court order, consent order or no order in respect of finances its extremely important you consider implementing or amending your will in line with your future wishes.

Can my ex wife claim half my new house?

After divorce and with a Clean Break Order in place then normally, no. However, there can be circumstances where this can be over turned. Call us to discuss your circumstances.

What if the only asset is an inheritance?

The court will always look at the needs of the parties and all assets and therefore if there is an inheritance that has been considered non matrimonial this can be invaded if the needs cannot be met from any other assets.

This can be a complex area of law, and whilst this article seeks to give some guidance, detailed advice can only be given once all of the figures and circumstances are known about a particular case, we therefore suggest that you contact us today to arrange a consultation for initial advice should you need further advice on the above and divorce matters generally.

Article dated:  04/09/2024