In family court property matters, the receipt of inheritance by
a party is often a consideration in the overall determination as to
what a party might receive in a property settlement. Generally
speaking, a receipt of inheritance by a party during the
relationship is considered a financial contribution by them to the
formation of the asset pool.
There are a few different factors, however, which can affect the
weight given to the receipt of inheritance in terms of the ultimate
When the inheritance was received: If the
inheritance was received at the outset of a 40 year relationship,
the contribution will likely be deemed to have "eroded"
over the term of the relationship. Conversely, if the inheritance
arrives in or around the time of separation, it is quite likely
that the court will consider the inheritance to be a significant
contribution by the party who receives it, for which they will be
given substantial credit.
The size of the inheritance: The inheritance
might be so large that, no matter when received, it cannot be
ignored as a contribution. For instance if one party receives an
inheritance of 5 million dollars at the start of a long term
relationship (and thus allows the parties to purchase a house, etc)
it will have a huge impact on the asset pool that will likely never
be significantly eroded. In the opposite scenario, the receipt of a
small inheritance may have a minimal impact on the contributions
factors for property division.
Does a party have an expected inheritance
interest: The old maxim in family law is that
"expected" inheritances are not taken into consideration
by the family court in their factoring of respective interests in
property settlements. The reason for this is simple – people
are leading long lives and anyone can change their will at any
time. Simply put, very few people have a guarantee of receiving an
inheritance; they only have an expectation of receiving an
inheritance. Recent case law, on rare occasions, has seen courts
recognise for the purposes of asset division the fact that a party
stands to inherit money in the future. Amongst the issues that the
court factors in when considering an expected inheritance by a
When will the inheritance happen? – is the person leaving
the inheritance very sick or near death? Unless that person is more
likely than not to die in the near future, then the less likely it
is that the court will recognise an inheritance expected at some
point in the future.
Is the Will of the person leaving the inheritance set in stone?
– if that person makes a Will and then becomes ill or loses
capacity such that they are unable to change their Will, then the
inheritance of their heirs may be reasonably assured, such that the
Court would be prepared to take it into account.
Have both the parties to the marriage contributed to the asset
to be inherited? For example, if the husband's elderly parent
has been ill for a long time and the husband's wife has been
that parent's long term primary carer, then there may be an
argument that the expected inheritance should be taken into
account, given the wife's contribution.
Does the asset pool lack sufficient assets to compensate the
non-inheriting party without considering the expected inheritance?
If so, there is a possibility that the court will take the expected
inheritance into consideration to ensure a fair result.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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