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Divorce – is my ex-partner entitled to half of my inheritance?

PLEASE NOTE: THIS ARTICLE IS OVER 1 MONTH OLD

The short answer to the above question is it all depends on the circumstances.

If the inheritance was received during the marriage it depends on whether the inheritance was “merged” with other matrimonial assets. For example, if the inheritance was used to buy the matrimonial home, pay off the mortgage or was spent on family holidays, then it has most definitely been merged with other matrimonial assets and will therefore be treated as a matrimonial asset.

Alternatively, if the inheritance was placed in a separate sole account in your name and was never used as a matrimonial asset then it can be argued that the inheritance was, and is, a non-matrimonial asset.

The concept of matrimonial and non-matrimonial assets has a place in cases where there is more money available, but arguably has no place in cases where the parties combined financial needs outweigh the matrimonial assets. In cases where there is plenty of money available, the non-matrimonial assets can essentially be considered ringfenced.

The financial needs of the parties are considered very important by the Court, and if it is not possible to meet the joint needs of the parties from matrimonial assets then the Court will also look at the non-matrimonial assets. The court will consider the housing needs of the parties and if there is an unmet housing need, not enough money to reasonably house the parties, then the Court may need to consider the non-matrimonial assets.

In the event that you receive an inheritance after divorce, your ex-spouse may still be able to make a claim. Assuming that the divorce itself has been finalised either by Decree Absolute (or under the new no fault legislation now known as Final Order) this does not terminate financial claims. If, however, there has been an Order of the Court either by consent or following a contested hearing that may well include provisions dismissing one or both party’s future claims against the other party. Another consideration is if the person wishing to make the financial claim was Respondent to divorce and has remarried, then they lose the right to pursue such a claim (unless they have issued their financial application prior to remarriage).

Assuming none of the above factors apply to deny the ex-spouse the right to make a financial claim, then the consideration of matrimonial and non-matrimonial assets will still apply. Clearly an inheritance received long after divorce cannot be said to be a matrimonial asset, but the Court’s consideration of financial needs may still take precedence over such arguments relating to matrimonial/non-matrimonial assets.

Another area for consideration is the future inheritance prospects of one or both parties to the marriage. Whilst this can be taken into account by the Court it often has little effect on the overall outcome, it is quite legitimate for Courts to take the view that the relative in question could live for another thirty years and there is absolutely no guarantee that they will either have any assets left by the time they die (perhaps all spent on nursing home fees), or alternatively may choose to leave their estate to someone other than the party going through divorce.

This can be a complex area of law, and whilst this article seeks to give some guidance, detailed advice can only be given once all of the figures and circumstances are known about a particular case, we therefore suggest that you contact us today to arrange a consultation for initial advice should you need further advice on the above and divorce matters generally.

Richard Johnson – Chartered Legal Executive

01/09/2022

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