An inheritance, or anticipation of an inheritance, can cause unexpected problems!
When a marriage breaks down and it comes to dividing up the family finances, one question that is frequently asked of the solicitors is ‘What about my inheritance?’
During a marriage, particularly a lengthy marriage, it is very possible that one or other spouse may have received significant monies from say the death of a parent and that such monies received have been put towards reduction of the mortgage on the home, purchase of buy to let investment property or maybe a holiday villa in Spain.
The question is then raised ‘Does that money or property come back to me as it was from my parents?’
In short the answer is not necessarily. The ability to “ring fence” an inheritance will depend upon when it was received, how much it amounted to, what the other assets that are available for division are, and what the respective financial needs of the parties are particularly for rehousing.
Whether you are trying to protect an inheritance upon divorce or claim against inheritance wealth, legal advice is certainly worthwhile. There is always caselaw on this topic. Angela Moores says “the recent High Court case published during August 2011 known as AR v AR examines this topic once again. The principle of fairness is referred to throughout that case. What however amounts to fairness will vary from one case to another and from one person’s perspective to another”. There is no mathematically exact calculation that can be done and each case is different- hence the need for expert family law advice at the outset to set everyone on the right track as to their expectations from the division of family finances.
Another question asked around this inherited wealth issue is ‘What about any amount my spouse is going to receive post divorce from the other’s parents who are not yet deceased?’
An asset cannot be considered to form part of the assets for division on divorce unless and until is actually belongs to one or other of the spouses. Therefore something that may or may not happen in the future (such as the receipt of an inheritance) cannot be taken as certain and cannot be taken into account. The parent may need to utilise their monies for residential care prior to their demise. Similarly the parent may determine to spend spend spend on cruises, high living and enjoying their final years. Generally, an inheritance has no certainty or entitlement until a person dies.
In answer to the question posed, it may be if a death is anticipated in the short term, that some form of contingent payment could be built into a settlement. If a settlement is not a “clean break” settlement (ie there are ongoing financial responsibilities between the spouses such as maintenance payments) then once an inheritance falls in, that such ongoing issues can be revisited. However the benefit of a “clean break” deal is that each party is free to go forward in life without the risk of further claim from the other and that includes on any future inheritance.
Jarvis Family Law LLP
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