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16 January 2013

Can my wife claim on my inheritance?

Sue Andrews has specialised in family and matrimonial law since 1980 and has led the family law practice at B P Collins since 1988. Here Sue sets the scene for this commonly asked question and provides some timely answers. 

“A client asked for our guidance on whether or not his wife, from whom he had been separated for over a year, would have any claim on a large sum he had just inherited from his mother,” said Sue.

“He wanted to know, as the money was from ‘his side of the family’ and bore no connection to the marriage itself, whether he could protect it from being part of the assets to be divided between them. 

“I explained that there was nothing he could do to avoid disclosing the inheritance, but was able to reassure him that the court would look at all the circumstances of the case and that, in my view, it was pretty unlikely that the actual funds he had inherited would be shared, though his wife could receive a larger slice of the matrimonial assets as a result.”

Sue says that if the financial issues between a separated husband and wife, or civil partners, have not been concluded by the time one receives an inheritance, then it must form part of the assets to be considered.

This can also apply if one spouse or civil partner is likely to receive an inheritance in the very near future, for example from a terminally ill relative. And while the overriding aim is to achieve fairness between the parties, this can mean different things to different people.

In most peoples’ view, Sue says if someone receives an inheritance, particularly after separation, it would not be fair to divide the total resources equally. The Matrimonial Causes Act sets down a number of criteria which must always be considered when negotiating a settlement or by the judge hearing a matter.

These include the “financial needs, obligations and responsibilities which each of the parties to the marriage has or is likely to have in the foreseeable future” and the court also has to have regard to “all the circumstances of the case, the first consideration being the welfare of a minor child”.

Sue continued: “In a nutshell, this means that if an equal division of the resources built up during the marriage is insufficient to meet the needs of the person without the inheritance, he or she may receive more of those assets because the spouse or civil partner with the inheritance can use that to meet their future needs.”

She stresses however that every case is different. In this case my client’s wife had been very close to his late mother and had helped care for her, and so this may be taken into consideration as would the fact that she has wealthy parents in their eighties.

“Having considered all of the circumstances the judge will apply what he or she thinks is fair. Judges have a wide discretion so different judges may come up with different solutions, but in most cases, where the assets exceed the needs (as was the position with this client) the court will want to distinguish between matrimonial and inherited assets,” she said.

Sue ends with a final word of warning for anyone who wants to “disappear” any assets before proceedings take place. She says that the court is likely to take a dim view of any such action and, if a judge believes that assets have been deliberately put out of reach, may make a higher award of the rest of the assets.

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