If you are likely to inherit money but your marriage is ending, you may be concerned about what will happen to the funds. This can be an emotive topic, as you are likely to feel that the person leaving you money wanted you to benefit from it. The idea that it might go to a former spouse and not to you can be distressing. We take a look at how the courts will deal with the situation and answer the question: Can my ex-wife claim inheritance after divorce?
Can My Ex-Wife Claim My Inheritance?
When you divorce, it is essential to have a financial order made. This will usually prevent a spouse from making any future financial claims against you. You may be able to agree on how your assets and liabilities will be split. If you cannot, alternative dispute resolution, such as mediation, can be used. If you are still unable to agree on matters, you can apply to the court.
In deciding how to split your assets, the courts will aim to provide for both parties reasonable financial needs. It will start from a 50:50 division of matrimonial assets, but if one party is in a weaker financial position, the court is likely to award them a higher share of the assets.
When considering what order to make, the court will look at section 25 of the Matrimonial Causes Act 1973. This states that the judge should take the following into account:
- The financial resources available to the parties, both at present and in the foreseeable future
- The financial needs of the parties, at present and in the foreseeable future
- The standard of living of the parties during the marriage
- The parties’ ages
- The duration of the marriage
- The contributions each party made during the marriage, including raising children and looking after the home
- The parties’ conduct, but only if it is relevant
- The value of any benefit which either party may lose because of the divorce
When looking at inherited money, the first point to consider is whether it will be considered a matrimonial asset or a non-matrimonial asset.
Does it Matter if the Inheritance is Received Before or During Marriage or After a Divorce?
When money is received, it can be important when looking at whether an inheritance will be split on divorce. If it was inherited before the marriage and it was kept separately from matrimonial funds, the court can consider this a non-matrimonial asset. However, this does not mean that it will automatically be excluded when a financial order is made.
If there are insufficient other funds to adequately provide for your former spouse’s reasonable needs, it could be shared.
When money is inherited during marriage and used as joint funds, for example, used to buy a property that is owned by you both as joint tenants or put into a joint savings account, the court will usually consider this to be a matrimonial asset, and it will be included in the pot of money to be split on divorce.
If your inheritance is likely to be received in the future following your divorce, it will not generally be considered unless it is likely to be passed on very soon and will be a substantial amount.
Parents Delay Passing on Money to Children
Parents may decide not to pass on funds to children in case their marriage ends and the money has to be shared with an ex-spouse. There may be a way of safeguarding funds, for example, by placing them in a discretionary trust, but it is important to take legal advice before doing so, as this is not always the right option.
How to Prevent an Ex-Spouse From Receiving Inherited Money
If you receive an inheritance, it is important to keep it completely separate from shared funds if you want to reduce the risk of your spouse having a claim over it. Even then, there are no guarantees. If the court decides that it is needed to achieve a fair settlement which adequately provides for their needs, it will be used.
Benefits of a Pre-Nuptial Agreement or Post-Nuptial Agreement
A pre-nuptial or post-nuptial agreement is often the best way of reducing the chances of a spouse taking part in an inheritance on divorce.
The agreement will set out how assets and liabilities will be dealt with during a marriage and what will happen in divorce. This can help you both to deal openly with financial issues and ensure that each of you knows what will happen in the future, giving you a level of certainty.
While a pre-nuptial or post-nuptial agreement is not legally binding, the courts will usually follow its terms in making a financial order on divorce, provided that the following points have been dealt with:
- Both of you made full financial disclosure to each other
- The document was correctly drafted and executed as a deed
- Both of you agreed freely and without duress
- The agreement does not prejudice the interests of any children
- You both received independent legal advice before signing
- If the agreement is a pre-nuptial agreement, it was made at least 28 days before the marriage took place
If you receive an inheritance during your marriage, then you can enter into a post-nuptial agreement, which is similar to a pre-nuptial agreement but is signed after the marriage takes place.
Should I Do My Divorce Myself?
If you are going through a divorce, obtaining a final order for divorce is relatively straightforward. However, it is crucial to put a financial order in place alongside your divorce. It is often advisable to deal with financial matters before your divorce is finalised.
Without a financial order, your former spouse could make a claim against you in the future, for example, if you were to inherit money.
For this reason, it is always recommended that you speak to an expert divorce and financial solicitor or a wealth manager. If you ask us to represent you, we will advise you of your options and devise a strategy for securing you the best possible financial provision for the future.
Contact Our Expert Family Solicitors
If you are going through the breakdown of a relationship and would like to know whether your ex is entitled to your inheritance, contact us today, and we will be pleased to help.
Our dedicated divorce solicitors offer expert guidance and support. Contact us today for a confidential discussion on your situation – call 0330 173 3980, email info@witansolicitors.co.uk, or fill out our online contact form. We have convenient locations in Birmingham, Northampton, London, and Wellingborough.
