Do I have to share my inheritance after a divorce?
The requirement to share an inheritance received during a marriage is a significant concern for couples going through a divorce. The family team at Harrison Drury are regularly involved in cases where one spouse has received a significant inheritance from their family during the course of their marriage. Janine Hutson, senior associate solicitor, and Louise Shaw, trainee solicitor, from our family team look at the rules around sharing inheritances on divorce.
The starting point for the division of assets on divorce is always an equal division of the assets between the parties. However, each individual case is different and whether you need to share your inheritance with your former spouse will depend on your circumstances.
Inheritance received during the marriage
Inheritances are only usually considered as part of the ‘matrimonial pot’ in two specific circumstances:
If it is required to meet the reasonable needs of the couple. When looking at the needs of each spouse (and any children) i.e. for a home etc, if these needs can be met without bringing the inheritance into play, then the inheritance will not be considered within the matrimonial pot.
However, if the inheritance is required for the needs of both spouses to be met, then it can be included as a part of the matrimonial assets.
If the inheritance has been ‘mingled’. This occurs when the inheritance becomes mingled with matrimonial assets over time, making it difficult for the inheritance received and joint assets of the couple to be separated.
As an example:
- A couple married in 2008 and had accumulated £2 million each in their own savings, property and pension.
- The wife had also inherited £500,000 from her grandfather in 2013 and decided to buy a home for the couple in Spain, in their joint names.
- The couple then divorced in 2022. The Spanish property is jointly owned and is therefore ‘mingled’ with the assets of the marriage. This can be shared.
- If the wife had bought the Spanish property in her sole name, then it would only be shared if it was needed to meet the parties’ reasonable needs.
Even if an inheritance wouldn’t be needed to meet needs, if it has been ‘mingled’, then it can be shared.
In what circumstances will my inheritance be safe in divorce?
Although this is very much on a case specific basis, it is more likely that your inheritance will not be shared if:
- It has been kept completely separate from other matrimonial finances or assets and the assets have not been used for the benefit of both you and your spouse.
- The needs of each spouse (and children) can be met without the inheritance; or
- It has been agreed by both parties that no claim will be made for a share of the inheritance.
Conclusion
If the matrimonial pot has sufficient assets to cover both parties’ (and any children’s) needs, and an inheritance has been kept entirely separate from the assets of the marriage, then it is generally the case that the inherited property can be kept by the spouse who inherited it.
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