When relationships break down, the emotional and financial uncertainty and the potential division of assets between the two separated partners can be overwhelming, even more so where an inheritance is involved.

Many people assume that inheritances are “protected” or “excluded” in family law when the parties are separating. That is not the case.

In family law, there is a well established path that requires the Court to “identify” a parties’ interest in property. If an inheritance has been received, whether by funds transferred to a bank account, a property transferred into your name, or some other asset given to you, once the inheritance has been received, it is legally your’s.

The question, more often than not, is not whether or not the other party is entitled to an inheritance, but rather how the asset pool should be divided given the fact that one party received an inheritances. An argument that the other party is not entitled at all to an inheritance you received is not likely to succeed, but an argument that you are entitled to a larger portion of the assets to be divided because you received the inheritance, that is one that is more likely to succeed.

Inheritances can be treated in many different ways based on the facts of the case, the size and make of the inheritance, how the inheritance was applied, whether both parties contributed to the inheritance, whether the inheritance was intended for both parties and importantly, the timing of the inheritance, etc.

Ultimately, there is no one size fits all approach to inheritances. As you can see from the cases above they vary greatly based on the individual facts. A $50,000 cash inheritance received at the start of a 25 year relationship will be treated very differently to a $1M property inherited 2 years after separation.

If you have a case where an inheritance has been received, or is about to be received, and you are negotiating the division of assets with your spouse, we can assist.