Martin Faull

Martin Faull on inheritance and separation

When it comes to dividing the asset pool in a separation, things can really go off  the rails.

You need to know where you stand legally when you have property that you wish to keep, such as an inheritance received prior to the separation.

Here is a basic guide to what can happen to your inheritance when you separate from your partner or spouse.

Can you keep your inheritance if you get divorced?

Whether or not you are able to keep all of the inheritance you received whilst you were married depends on your circumstances.

An inheritance received prior to separation forms part of the asset pool of the parties.  However, it would be deemed as a significant contribution by the party who received the inheritance.

How much of the inheritance you are able to retain depends on how long before separation you received it.

The same can be said,  for example with cross lotto winnings.

What if we reach an Amicable Agreement?

Of course coming to an amicable agreement with your former spouse about how the marital assets are to be divided is best.  It generally means you maintain a relationship of sorts and you haven’t spent thousands on lawyers.  It involves compromise and negotiation from the parties, and you should formalise the agreement by applying for consent orders through the Family Court or entering into a Binding Financial Agreement.

If an agreement cannot be reached, then you should make an application to the Court.

The Court will ultimately decide how the property is to be divided and how much of the inheritance you retain.

Beneficiary of a Will?

Generally only the child of the deceased is named as a beneficiary of a Will and not their partner.  The inheritance is commonly used for the betterment of the family, for example holidays, household expenses and house renovations. When this happens, the Court will usually count the inherited asset as a significant contribution to the marriage made by the person who inherited it.  It will depend on a number of factors such as the length of the marriage, and when the inheritance was received as to what adjustment will be made.

Sometimes the beneficiary of an inheritance will segregate their inheritance from the rest of the family assets.  In this case, the Court will be easily able to identify the inheritance.

What Next?

Getting advice from an experienced family lawyer will ensure that all your legal bases are covered.

At Lindbloms Lawyers, we have experience helping our clients protect their interests when going through a divorce. Our family lawyers will handle your case with the care and sensitivity that it requires.

For expert advice on your divorce and inheritance, contact Lindbloms Lawyers 08 8357 7611.