Inheritance: mine or ours?

According to recent research, a third of parents are concerned about leaving money and assets to their married children in their wills in case they get divorced. The assumption seemingly being that when a couple divorces they each walk away with half of the assets. Whilst this may be the outcome in some cases, it is by no means a preordained or guaranteed outcome.

When a marriage or registered civil partnership breaks down, the lawyers and the courts have to look at the individual circumstances of that particular case. When dealing with financial matters, the court’s objective is to achieve an outcome which is fair and reasonable in all the circumstances.

In order to consider whether a settlement is fair and reasonable, different factors are considered, such as: each person’s income and capital resources both now and in the foreseeable future; their respective ages; the duration of the marriage; their income and capital needs; their standard of living during the marriage; any disability either party may have; and contributions each party has made to the marriage.

An additional factor to be considered is whether an equal division of all the assets (including inheritances) would be fair. This is more likely to be the case in respect of a long marriage, but perhaps not for a short one.

An inheritance can form part of the assets to be taken into account, but this depends on what other assets are available and when the inheritance was received. If it was received at beginning of a long marriage, the ‘contribution’ may be watered down over the passage of time. If it is a recent inheritance, there may be more scope to argue that the person who received it should keep it. That said, an inheritance may not be excluded from the joint ‘matrimonial pot’ if there are very few other assets, to the extent that one or both parties’ needs cannot be met without the inheritance monies being added to the matrimonial pot.

To paint a picture, Mr and Mrs Wills are married with two children. Mrs Wills receives a significant inheritance which is used to purchase the family home. Unfortunately the marriage breaks down and Mrs Wills moves out and purchases a new property. Mr Wills remains living in the first home with the children. If there were no other assets, it would be unfair and unreasonable for Mrs Wills to receive her whole inheritance back as it would potentially render the children and Mr Wills homeless. This is merely an illustrative example, and most cases are not so clear cut. Full legal advice should be taken in respect of such matters.

Therefore, the answer to the question “is my inheritance mine or ours” depends on all the facts of the case.

Gemma Kemp, Legal Executive, Family Law, Woking