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Divorce and Inheritances
Inheritances and property settlements
Whether or not an inheritance is to be considered part of the pool of assets of a marriage, is looked at by the Court on a case-by-case basis.
There are a number of key things to consider when examining how and when an inheritance will be considered as part of a property settlement:
1. When was the inheritance received? (On what date? Was it before, during or after separation?)
2. Has the inheritance been distributed, for example was it a property transfer, shares, cash?
3. Was the inheritance received during a marriage/defacto relationship?
4. If it was received during a marriage/defacto relationship, how was the inheritance then used? Was it for the advantage of only the recipient or was it used to the benefit of both parties to the relationship and how?
Can a future potential inheritance be taken into account?
When considering prospective inheritances, the Court will take into account that the person making the will (Testator) may change their minds and that the inheritance is therefore not 100% guaranteed, or there may be a significant change in the nature or value of the inheritance over time.
However, there are still circumstances where a future prospective inheritance may be taken into account by a Court during property proceedings.
Under Section 75(2)(b) of the Family Law Act, the Court may consider a prospective inheritance as a ‘financial resource’ of one party, therefore including it within the property pool.
Section 75(2)(o) of the Act also allows the Court to consider ‘any other matter that is relevant’ which could arguably extend to a prospective inheritance being taken into account.
What will the court take into account for prospective/future inheritances?
When dealing with prospective inheritances, the Court will usually take into account three key factors:
1. The size of the inheritance - the Court may find it would be unjust and inequitable if it did not take into account anticipated inheritances, which would significantly benefit one party, following property settlement.
2. The likelihood of the inheritance being received – just because one person is likely to benefit from an inheritance doesn’t automatically mean that the court will consider the prospective inheritance but, if for example, the testator had a legal will, was exceptionally ill and no longer had capacity to change the will, then this may be taken into account.
3. The time at which the inheritance is likely to be received – a long time in the future or is it very likely to occur soon? If the testator is sadly facing significant illness or imminent death, the court may choose to adjourn the family court proceedings and wait for the inheritance to be received to then determine its full value.
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