What Happens To My Inheritance If We Divorce?

You’ve decided to separate, next you’ll need to tackle the division of property.

Ordinarily all assets and debts are pooled and distributed between you and your ex-partner. There are several ways this can be done. Together you can agree on how to divide your property without court involvement, which can then, if you wish, be formalised with a consent order. If you and your ex-partner are unable to come to an agreement then the matter may need to be resolved via the courts.

Regardless of which process you go down, it is highly recommended that you receive legal advice at this stage to establish exactly what it is you are entitled to. When you have property you wish to keep, such as an inheritance you have received, you need to know where you stand legally.

Unfortunately, a common misconception is that inheritances fall under a ‘protect category’ and are separate to the asset pool available for distribution. Every case is different, however here is a guide to what can happen to your inheritance when you and your spouse or partner separate and are unable to come to a mutually agreeable outcome together.

Related Article: Financial Do’s and Don’ts During Divorce

Can you keep your inheritance if you get divorced?

If you and your ex-partner have not been able to come to an agreement on the division of assets including your inheritance, then it will be up to the Court to determine whether or not your inheritance is considered part of the pool of marital assets to be divided or whether is exclusively your property.

Is your inheritance part of your marital assets?

Factors that the Court will consider when determining whether your inheritance is treated as part of the marital assets or separate are:

• Timing – If the inheritance was received well before separation, the asset is more likely to be considered part of the marital assets. An inheritance received late in the relationship may be quarantined from the marital asset pool.
• Intentions – The intentions the deceased had for how the beneficiary should use the inheritance. If the inheritance was expected to benefit the whole family or just the beneficiary will be taken into consideration.
• Who cared for the deceased – if the non-beneficiary spouse helped care for the deceased then it is more likely that the inheritance will be treated as belonging to the family and hence a marital asset.

How are marital assets divided?

There is no set formula on how the courts will decide the division of assets, this will always be unique and depended on specific circumstances of each party.

Some factors that the courts will consider include:

• The future needs of each party including; age, health and financial resources.
• Financial contributions made by each party during the marriage.
• Responsibilities each party had within the marriage.

Note: This is general information advice only and does not constitute specific legal advice. If you would like further information in relation to this matter or other legal matters, please contact us on 03 9620 0088 or email info@resolveconflict.com.au