Can my ex claim my inheritance?
If you receive an inheritance over the course of your relationship, that inheritance may be included in you and your ex’s asset pool.
If one of the parties receives an inheritance during the course of the relationship, then the inheritance will be considered as property in a property settlement under the Family Law Act (1975).
An inheritance can be classified as the following:
- An asset that can be divided between the parties;
- A financial resource that a party can rely on.
If the inheritance is considered to be an asset that is to be divided between the parties, then it may be split or divided according to the property settlement.
Can my ex claim my inheritance if it is considered a financial resource?
If, however, the inheritance is considered a financial resource, then it will not be included in the asset pool.
Instead, the Court will consider the fact that one party will be able to access the inheritance to the exclusion of the other.
The court may then (at its discretion) make an adjustment in favor of the party who did not receive the inheritance.
Example of how inheritance is dealt with between ex-husband or wife
For example, if the Court considers the contributions of the parties to be equal up until the point of separation, then in most cases, the property will be divided 50/50.
However, if the wife has received an inheritance just before separation, the Court may choose to exclude the inheritance, and instead, choose to make a 5 per cent adjustment in the husband’s favor so that the property will be divided 45/55.
This is because the wife will have the benefit of the inheritance while the husband will not have access to the same level of financial resources.
For inheritance and property settlement, it is important to obtain legal advice for your unique inheritance and divorce as there are always other factors that may be relevant such as which party has care of the children and each party’s ability to earn income in the future.
Principal of Justice Family Lawyers, Hayder specialises in complex parenting and property family law matters. He is based in Sydney and holds a Bachelor of Law and Bachelor of Communications from UTS.