Divorce and inheritance; if you’re getting divorced, can you keep an inheritance out of the divorce 'pot'?

Divorce and inheritance; if you’re getting divorced, can you keep an inheritance out of the divorce ‘pot’?

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If you’ve received money from an inheritance and you get divorced, can you keep the inheritance out of the divorce ‘pot’?

The starting point

Most divorces don’t end up in court, but divorce lawyers will always look at the approach the courts would be likely to take. In terms of dividing the assets (such as property/investments etc) that a couple may have, the general starting point is:

  • In England and Wales: money, including property, pension etc you’ve acquired through your work, business or investments is put into the ‘pot’ to be divided at divorce.

SAVVY TIP: Money or property you’ve inherited isn’t automatically excluded, but generally, unless the financial needs of one or both parties mean that inherited assets have to go into the ‘pot’, they are likely to be left out.

  • In Scotland: assets acquired during the marriage are divided at divorce. However, those owned individually before you got married are excluded (unless it’s a property that was purchased specifically for you to live in as a married couple), as is anything given to you or your husband/civil partner or inherited by them.

When an inheritance may be excluded

There are very few hard and fast rules when it comes to the way finances are divided at divorce. However, a divorce court is more likely to ignore the value of an inheritance when:

  • A short marriage is coming to an end. There’s no official definition of ‘short’ but David Allison, SavvyWoman’s divorce and relationship breakdown expert, who’s a partner with family lawyers Family Law in Partnership says that an inheritance would generally be excluded if a marriage had lasted for less than five years.

SAVVY TIP: If the couple had children and the parent with care (the one who has the child/ren for the majority of the time) needed money for a house etc, an inheritance would be taken into account.

When an inheritance would be included in the assets for divorce

If a couple has been married for a long time, an inheritance would almost always be included in the financial assets to be divided. It wouldn’t matter whether it was received near the beginning of the marriage or towards the end (or even after the date of separation).

Protecting your inheritance

If you want to protect an inheritance (or if the person making the inheritance wants you to protect it) you can do so by taking out a pre-nup or post-nup. Pre-nups aren’t yet legally binding in England, Wales and Northern Ireland, although the Law Commission (in England and Wales) is looking at the idea of making them legally binding.

SAVVY TIP: In Scotland, pre-nups are generally viewed as legally binding.

In England and Wales, courts will generally take the contents of a pre-nup into account and post-nups (agreements drawn up after marriage) are legally binding.

Useful links: You can find a list of law firms that specialise in divorce and who support what SavvyWoman do in our Directory.

Related articles:

Should you and your partner have a pre-nuptial agreement?

Is everything split 50:50 when you get divorced?

VIDEO: Dividing a pension on divorce

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