Is my spouse entitled to my inheritance?


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Is my spouse entitled to my inheritance?

Although it is said that many baby boomers are spending their children’s inheritances, it is still worth while considering the ways in which you can deal with an inheritance so as to protect yourself from a future claim by your spouse.

There are no hard and fast rules with respect to how a Court will deal with an inheritance although you can expect that if an inheritance is received prior to separating from your spouse, the inheritance will be included in the pool of property which the Court makes adjustment Orders against.  You can also expect that the more time which has passed since receiving the inheritance, the greater entitlement your spouse has to the inheritance.

The Court looks towards how the inheritance was treated by the parties during the marriage.  If it was kept separate, then you have greater opportunity to argue that the inheritance should be quarantined and dealt with in a “second pool”.  Conversely, if the inheritance is intermingled with other matrimonial property and transactions, then it will be impossible for the Court to ascertain its present value and as a result, the significance of the inheritance will be lost or more likely significantly eroded.

The best way to protect an inheritance is to enter into a Binding Financial Agreement with your spouse which deals with the inheritance.  A Binding Financial Agreement can be entered prior to separation and can deal with only the inheritance if you so desire.  It may be difficult for you to have a discussion with your spouse about such matters, but ultimately, a difficult conversation now may save significant time and expense later.

In summary:-

  1. Be aware that your spouse may have a claim against your inheritance;
  2. The way you deal with your inheritance will have an affect on what claim your spouse has (if any); and
  3. The best form of protection is a Binding Financial Agreement.

Obviously, there are also measures that can be taken at the time of preparing a Will, which cover claims by spouses of any beneficiaries.

At Evans & Company Family Lawyers we can provide you with a quote to prepare a Binding Financial Agreement to meet your needs.