Can an ex-spouse claim your inheritance?

Inheritance and divorce can be a tricky issue. For those hoping to keep as much wealth as possible within the immediate family, across many generations and to provide for the future, the question of whether a divorced spouse can inherit this family wealth is a significant one.

If you’re a little unsure about the future of yours or your loved one’s marriage, it’s wise to know where you stand.

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Can my ex-husband claim my Inheritance after divorce?

Many families worry about whether a former spouse could benefit from wealth that was intended to stay within the family. In some circumstances, an inheritance may become relevant during divorce proceedings, particularly when the court is deciding how assets should be divided fairly between both parties.

If an inheritance has already been received during the marriage, the court may consider it when determining a financial settlement. However, this does not necessarily mean it will be divided between both parties, as several factors are taken into account, including how the inheritance was used and whether the couple’s needs can be met using other assets.

Where an inheritance has not yet been received but is expected in the near future, the court may also consider this when assessing the financial circumstances of each party. 

Are Inheritances always excluded from financial settlements?

Inheritance is often treated differently from assets acquired during a marriage. In many cases, inherited wealth may be viewed as separate property rather than a shared marital asset. However, this is not guaranteed, and the circumstances of each case will influence how the court approaches the issue.

Critically, the court’s primary focus is always on the financial "needs" of both parties. If the matrimonial assets available are not sufficient to meet the reasonable needs of both parties, such as housing and basic security, the court may override the non-matrimonial status of an inheritance and include it as part of the financial settlement. For this reason, inheritance cannot always be assumed to be fully protected during divorce proceedings. 

Understanding Matrimonial Vs Non-Matrimonial Assets

In the event of divorce, assets can be considered either matrimonial or non-matrimonial. The former includes money and property acquired during the marriage by either party, while the latter includes money and property that have come from outside the marriage – including inheritance.

• What are Matrimonial Assets? Matrimonial assets generally include property, savings, pensions and other wealth accumulated during the course of the marriage. These assets are typically considered joint property, regardless of whose name they are held in, and are therefore subject to division as part of a financial settlement.#
• What are Non-Matrimonial Assets? Non-matrimonial assets are usually assets that were owned before the marriage or that were received individually by one party during the marriage from an external source. This can include inheritance, gifts from family members, or assets that were clearly kept separate from the marital finances.

Non-matrimonial assets aren’t automatically considered as joint assets to be divided, and you may be able to exclude them completely from the divorce settlement. However, as noted above, this protection is not absolute; if the matrimonial assets aren’t enough to meet the reasonable needs of both parties, non-matrimonial assets, like inheritance or financial assistance, will likely be divided to ensure a fair outcome.

It’s also important to note that assets can change from non-matrimonial to matrimonial over time. If an inheritance, for example, was received during the marriage, the court may look at how it was used before deciding whether it might be divided or not. For example, if the money was in a joint account and used by the couple together, it may then be considered joint property to be divided. 

How can you protect your inheritance from an ex-spouse’s claims?

Protecting inherited wealth often requires forward planning. Taking steps early can help reduce the likelihood that inheritance becomes part of a future divorce settlement.

Keeping inherited funds separate from joint finances can help demonstrate that the asset was intended for one individual rather than the couple. Similarly, maintaining clear records of how inherited funds are held and used can provide valuable clarity if disputes arise.

In addition, formal agreements such as prenuptial or postnuptial agreements can set out how inheritance and other assets should be treated if the relationship breaks down.

Benefits of a pre-nuptial agreement: 

Prenuptial agreements, which are made before marriage to set out how assets would be divided in the event of a divorce, are often used to help in preserving family wealth and other contributions that parents may have made or intend to make to their children.

With a prenuptial agreement, or a ‘pre-nup’, any gifts, assets or inheritance given from a parent to their adult child will be protected after a divorce – for some parents, it’s a condition of the gift.

While a pre-nup is not technically legally binding, it’s enforced in practice as long as both parties have freely entered into the arrangement with full appreciation of what it entails and as long as the outcome would satisfy the "needs" of both parties and not leave one in real financial difficulty. The clarity and transparency that a prenuptial agreement provides ensures less chance of confusion in the event of the marriage breaking down and it can offer future security for both parties too. Pre-nups can also provide more security in international marriages – for example, determining where the divorce proceedings might take place – and when a couple has been living together before getting married.

Benefits of a post-nuptial agreement

Similar to a prenuptial agreement, there are postnuptial agreements, or a ‘post-nup’. However, unlike a pre-nup, a post-nup can be entered into any time once the parties are married.

Couples may well get post-nups if they hadn’t considered making an agreement before the marriage, if they ran out of time before getting married, or if there’s been a notable change in the financial situation of one of the parties since the marriage.

The benefits of post-nups are much the same as the benefits of pre-nups, helping to protect the parties in a marriage and make things clearer and more transparent. It can also be a good option for those couples who have been separated but then decided to work on their marriage rather than go through with a divorce. However, some people will prefer to sign off on an agreement before the marriage begins. 

If an agreement with regard to division of assets is reached upon divorce, it is essential that the terms are recorded in a Consent Order to make clear that the terms are in full and final satisfaction of all claims, and that all further financial claims a party may be able to make against the other are dismissed.  This is known as a “clean break”.

Even if terms of financial settlement are agreed and implemented, unless the terms are recorded in a Consent Order and a “clean break” obtained, it remains open for either party, even years after the divorce has been finalised, to pursue further financial provision.  Whether a party would be successful depends on the circumstances at the time the claim is made but the risk remains that further financial provision can be pursued.  This could include claims in respect of inheritance, or any other asset or income, that may be received long after the divorce.    

Other options include entering into loan agreements if, for example, a parent/family of one party makes a financial contribution and expects such contribution to be repaid i.e. it is not a gift.  In those circumstances it would be advisable to enter into a loan agreement to outline the terms of the loan and repayment.  

Finally, a further option would be to establish Trusts and place the inheritance into a Trust Fund. 

Can an ex-spouse claim on my estate after I die?

It is a common misconception that divorce ends all financial ties. In reality, a former spouse can still make a claim against your estate even long after the divorce has been finalised. Under the Inheritance (Provision for Family and Dependants) Act 1975, an ex-spouse who has not remarried may be entitled to claim against your estate if they believe they have not been left "reasonable financial provision." This risk remains unless you have obtained a properly drafted financial order (such as a Clean Break Order) that explicitly prohibits claims against each other's estates after death. For this reason, it is important to ensure that financial settlements are properly finalised and that your will is reviewed following divorce to reflect your updated wishes. 

How we can help

The financial aspect of divorce is something that can be hard to deal with, but there are ways to help protect your finances and preserve family wealth, even if you’re dealing with many generations of wealth that you need to look after for your future generations.

Here at The Private Office, we can offer advice either before marriage or when going through a divorce. The earlier you engage with us the more we can help to protect your wealth. Far better outcomes are achieved when appointing a financial adviser much sooner in the divorce process. Advice can help to understand tax implications, planning opportunities and establishing how much capital and income you need to live the lifestyle you wish to live.

If you’re looking to protect either your wealth in divorce or protect your family's inheritance why not get in touch online for a free initial consultation?

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This article is for information only and does not constitute individual advice.  The Private Office are not legal professionals, and this article has been written upon our understanding of the subject matter, as such professional legal advice should be sought prior to proceeding with any advice in this area.

The Financial Conduct Authority (FCA) does not regulate estate planning, legal, tax or trust advice.

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