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When can my ex claim against my inheritance?

Family Law: 22 March 2019

Separated spouses, de factos and their parents are often very concerned at the prospect of inheritances to come or inheritances received being retained by an ex partner. 

If an inheritance or large gift has already been received, then it will normally form part of the matrimonial asset pool, although the recipient will receive credit for its contribution.  This asset need not be included "in the poolif the parties had entered a binding Financial Agreement certified by independent solicitors.  Such an Agreement can provide that inheritances and gifts are retained by the party who receives them. 

If a parent is concerned that their estate may be retained by a partner of their child in future, they can draft their Will so that the property is held by trustees after their death, rather than their child.  In this way the trustees will only distribute income or capital as they see fit. 

If litigation is proceeding between separated partners it is difficult to argue that the Court should take into account an expected inheritance of one partner.  In unusual circumstances it has occurred.  Of course if the Will maker has died and there is a clear right to funds for one party, then this inheritance will be considered, as it is virtually money in the bank.

There are many different situations regarding estates which affect family law in different ways.  Some will involve drafting effective Wills, some drafting effective Financial Agreements, and some may have to be addressed in Court. 

Aitken Partners has Accredited Specialists in Wills and Estates and in Family Law. 

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