There is a common misconception that after you have divorced your spouse, they cannot make an inheritance claim against your estate while you are alive or after you die. But provided they did not remarry, an ex-spouse may bring an inheritance claim. Such claims tend to be brought in cases where ongoing financial support, for example, payment of spousal maintenance as part of the divorce settlement, ends when they die. In addition, there are circumstances where an inheritance is included within the available matrimonial assets for division upon divorce.
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Inheritance received before or during marriage
If your inheritance was received before you married, your ex-spouse may be entitled to make a claim if they benefitted from the inheritance during the marriage.
For inheritance received during the marriage, the court will probably class the inheritance as “joint property”. This is particularly the case where any money was paid into a joint account or a property was transferred into joint names. The Court would assume that the inheritance was treated as a benefit for all the family, rather than for one person.
This situation may be prevented by entering into a pre-nuptial agreement prior to the marriage taking place, or a post-nuptial agreement after you’re married, which will help you ring-fence the inheritance from any future claims.
You are likely to have to share your inheritance:
- If the inheritance has been merged with other matrimonial assets. This might be the purchase of the family home, using the money to pay off an existing mortgage on the family home, or funding the family in another way.
- You, your spouse, and any children’s needs cannot be met by using matrimonial assets alone.
It is more likely you will be able to keep your inheritance provided:
- You have kept it completely apart from every other matrimonial asset
- You, your spouse, and any children’s needs can be met by dividing the other assets alone.
Ideally, the court would prefer not to have to order you to hand over your inheritance, but their guiding principle is one of fairness, both parties benefiting equally from the joint fruits of their marital labour. Inheritance, such as gifts and pre-marriage wealth, does not come from the joint efforts of the parties, and so there is no general presumption that it should be shared. However, the “sharing principle” will always take a back seat to the central rule that parties should be able to leave a marriage with their basic needs met. If that requires dipping into an inheritance to achieve that aim, the court will order it.
Inheritance received after separation or divorce
If you are going through divorce proceedings and are expecting to receive an inheritance in the foreseeable future, it would not be taken into consideration as part of the financial settlement. But if you are likely to inherit in the immediate future, the legacy could be included in the divorce pot. Sometimes, a solicitor may advise waiting to settle financial issues until after the inheritance has been received.
An ex-spouse may still be entitled to claim a future inheritance after a divorce has been finalised if no clean break order or consent order has been put in place.
Can inheritance be protected from inclusion in divorce assets?
Drafting either a pre-nuptial (before getting married) or post-nuptial (after getting married) agreement explicitly excluding any inheritance might carry some weight with the court if it considers the agreement is fair, and is sure both parties agreed, and the party potentially acting to their detriment, was not bullied into signing it.
It may be possible to ask the person bequeathing the legacy to look at trust or estate planning, which could help to protect it. This is likely to apply to larger estates and legacies.
Can an ex-spouse claim on my estate after I die?
Your ex-spouse can claim against your estate after you die if:
- Your spouse has not remarried or entered into a civil partnership
- You did not reach a formal financial settlement, enter into a consent order excluding future inheritance claims, or obtain a clean break order
- The claim on the inheritance is made within six months of the Grant of Probate being obtained by the executors.
Any claim on inheritance is made under the Inheritance (Provision for Family and Dependants) Act 1975. Spouses who were receiving spousal maintenance at the time their ex-spouse dies are considered to be a dependant and could therefore claim under the legislation. This is why it is so important to protect your estate and any future inheritance you may receive.
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Protecting future inheritance after divorce
There are several ways to protect future inheritance following divorce:
If you are going through divorce proceedings, it is vital to consider entering into a Consent Order. This requires both parties to come to an agreement, which can be negotiated via solicitors or agreed between you regarding the financial aspects of the split. Once this is agreed, a consent order is drafted and sent to the court. Within the consent order, clauses relating to future inheritance can be included, which prevent any future claims being made.
Most people who are leaving someone an inheritance tend to want it to go to someone in particular. If there is the potential for claims on future legacies, it is sensible to speak with a professional specialising in trust and estate planning.
It is becoming increasingly common for trustees who are distributing legacies from a trust to insist on a post-nuptial agreement being put in place before distributing the legacy to a married beneficiary.
Pre and Post Nuptial Agreements
Both pre and post-nuptial agreements are ways to protect your future inheritance and current assets. These agreements identify ownership of certain assets and highlight how the finances are to be dealt with after divorce.
It is important to note that pre-nuptial and post-nuptial agreements are not legally binding in the UK, although they will be considered by the court when looking at the finances of both parties, before and during the course of the marriage.
As with many things surrounding the divorce process, whether it will be necessary to share an inheritance with your ex-spouse is a matter for the court to decide, and this will always include an assessment of what it considers being fair within the specific set of circumstances.
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