A post separation inheritance is what partners receive when they separate. Before doing so, it’s important to finalise a property settlement. An inheritance might include:
- Other investments
- Real estate
Children, grandchildren, and acquaintances frequently receive these financial and physical assets. Separated spouses can also receive this as a post separation inheritance.
It can be difficult to determine if the marital asset pool includes a post separation inheritance. An example is if a husband or a wife inherits money after separation.
During the estate planning process, clients decide how they want their assets divided.
This is the time when they write their Will and name their beneficiaries or heirs. In this article, we’ll include a more in-depth discussion of post inheritance separation.
The Common Approach To Post Separation Inheritance
It is true that the asset pool related to property settlement includes inherited property. However, it does not necessarily mean that both parties can receive a post separation inheritance. Who can receive property settlement? The court assesses in one of two ways.
The first is a holistic approach. Sections 75 and 79 of the Family Law Act 1975 consider all assets altogether. A different method is to look at each asset separately and the contributions of each stakeholder to each asset.
It is a fact that the property settlement’s asset pool includes the item. The court may decide that one party has no right to it since they made no contribution to it. There may be some uncertainty about the extent to which one party contributed to an inherited asset. These are:
- One party has done work on a property during the course of a relationship. Later, The other party after the couple had separated inherits the property
- When the parents who left property to the separated couple mixed finances while they were still alive.
Click here to watch a video on how to set aside property transfers
Can A Spouse Obtain Inherited Property?
Divorce and separation guidelines don’t state which of the parties should include the assets. While Family Court may approach inheritances differently in each case and there are no precise rules to follow. In most circumstances, divided joint assets include any inheritances.
What it boils down to is that the court assigns weight to each party’s contributions. The court considers their current financial status as well. Finally, having a Binding Financial Agreement is the only way to be sure about your finances after separation. This explicitly outlines who gets what if the relationship ends.
Post Separation Inheritance: Holland & Holland’s Case
In Holland & Holland’s case in 2017, the husband got a $715,000 inheritance from his late brother three and a half years after he separated from his wife. The couple divorced in July 2007 after a 17-year marriage. The husband acquired his brother’s home in February 2011, which had an $83,000 mortgage.
The brother’s parents’ superannuation money paid off the mortgage. This resulted in liberating the home. At trial, the Federal Circuit Court issued final orders for the settlement of the property.
The ratio was 62 percent to 38 percent in favour of the wife. The spouse’s financial resource was the $715,000 post separation inheritance rather than the property of the relationship. As a result, the marital asset pool excluded the post separation inheritance. The ruling, however, was overturned.
What Did The Wife Do?
The wife filed an appeal, claiming that the trial judge made a mistake. The judge defined the post separation inheritance as a financial resource. It makes no difference if the purchasing of the property happened during the partnership. This is the case if it was used as a post separation contribution. . The asset contributions of each partner must be weighed when reviewing asset entitlements.
Neither party contributed, because the asset belonged to the husband’s brother. The fact that there had been a large amount of time between separation and property settlement added to the complexity of determining contributions.
On appeal, it was determined that the trial judge erred in determining that the husband’s post-settlement inheritance constituted a financial resource that should be excluded from the property pool.
The Wife’s appeal was successful. Moreover, the Family Court’s Honorable Full Court ruled that the trial judge erred in classifying the inheritance as solely a financial resource for the husband
It is received or acquired after separation and might be constituted as an asset. This was split between the parties as such. A 60:40 split in favour of the Wife, for example.
This case demonstrates the importance of finalising your property problems once there is no hope of reconciliation. Should there have been hopes for seeking peace, the couple could have opted for mediation services.
Importance Of Seeking Mediation
It might be difficult to determine if an ex-partner has a claim to a post separation inheritance or a post-divorce asset. Therefore, it is essential to seek professional help from JB Solicitors. Divorces and separations are frequently traumatic and emotional experiences.
This is especially when it comes to asset splits and any disagreements about the value of an inheritance. Our experienced family solicitors ensure our mediation services divides property fairly between parties. This way, relationship disputes won’t escalate to court by reaching amicable agreements beforehand.
Make an inquiry with JB Solicitors today.