FAQ - Frequently Asked Questions
Do I Have to Split My Inheritance in a Divorce
Justice Family Lawyers Sydney
Many spouses choose to go to court for a property settlement after getting a divorce. This is where assets, including inheritances, are evaluated and the court decides how to divide the assets in a way that is fair to both parties.
Whether or not you will be required to split your inheritance depends on the individual circumstances of your case. There is no rule or formula used to decide who gets what in a property settlement, so it is hard to predict what the result of yours will be.
The best way to ensure that you will not need to divide your inheritance is to come to an agreement outside of court. This can be done through family dispute resolution, another form of mediation or counselling, or between yourself and your former spouse, without the assistance of a third party. If you can agree, you may wish to apply for consent orders or make a binding financial agreement to formalise this decision.
If you or your spouse make a court application for financial orders, it is then up to the court about how the inheritance will be divided, or even whether it will be divided.
The court looks at many factors. The testator bequeathing the inheritance may have specified in their will that it is for the benefit of both parties. In such a case, the inheritance is a shared asset and will be counted as divisible property.
The length of the marriage or de facto relationship has an effect, as does the length of time since the inheritance was received. Inheritances received at the beginning of a long relationship generally have little or no effect on that party’s property settlement entitlements.
The value of the inheritance is also important; if the inheritance is a very significant asset, it may be included in the divisible asset pool to ensure an equitable outcome for both parties.