Is my ex-partner entitled to my inheritance?

Is my ex-partner entitled to my inheritance?

29 - 05 - 2019
| JOSHUA PETERS, DIRECTOR
Is my ex-partner entitled to my inheritance? | Family Law Gold Coast | Advance Family Law

The issue of inheritances in family law matters can often become nasty, considering that the separated parties not only have to deal with the loss of their relationship, but also the loss of another family member or friend who they were close to and the potential of their ex-partner having a claim upon such inheritance monies.

There is no clear-cut answer as to whether an ex-partner is entitled to an inheritance of the other, however it is important to be aware of the different scenarios and to seek legal advice early.

Where a person is named in a Will, but the person who has written the Will is still alive and has mental capacity to make legal decisions and effectively enter into a new Will, such “expectation of an inheritance”, may have little relevance to a family law property settlement matter. However, in circumstances where the person who has written the Will is still alive but no longer has mental capacity, for instance may have dementia, such person is then unable to change their Will. As such, there is more certainty that the other person will benefit from the Will. In such instances, this is likely to be more than a mere, “expectation of an inheritance” and is likely to have an impact upon a property settlement.

It is not uncommon if a person may be likely to benefit from a Will, that it be required for the Will to be disclosed in the property settlement negotiation process.

In circumstances where a person is named in a Will and the person who has written the Will dies, either before or after separation, the entitlement to the estate is then vested and it is likely to affect the entitlements of both parties. In some circumstances, the inheritance can be excluded or quarantined from the asset pool, however each relationship is different and so is the impact that such an inheritance may have. Some relevant issues in determining the entitlement to an inheritance by the other party may be whether they assisted with the care of the person who has passed away, the value of the asset pool in comparison to the inheritance received and the timing of when the person passed away i.e. – in proximity to the separation.

It is important to have any property settlement agreement formalised to prevent future claim by your former spouse, should in the future you receive such an inheritance. Our Blog, Consent Orders Vs Binding Financial Agreements (BFA’s) may assist in deciding the most appropriate manner to formalise a property settlement agreement.

It is important that you obtain legal advice regarding the impact that an, “expectation of an inheritance” or an actual inheritance may have upon your matter. Call our Gold Coast office now on (07) 5679 8016, for your free 15-minute obligation free telephone consultation with one of our Specialist Family Lawyers.

 

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