Can Your Ex Claim Your Inheritance? What You Need To Know

Can Your Ex Claim Your Inheritance? What You Need To Know

“Can my ex-partner / spouse claim a share in my inheritance or gift from my family?”

This is a common question that my clients often ask. The Courts have long held that the general approach taken to gifts or advances from relatives has been to treat them as a contribution on behalf of the party who is the direct relative of the donor, unless there is evidence leading to the conclusion that the donor intended to benefit both parties – Gosper [1987] FamCA 43.

Gifts by Parents

In that case, the parents of the Wife gifted the parties a parcel of land to both the Husband and Wife jointly. The Court held that motivating circumstance of the gift of land was the relationship between the wife’s parents and the wife and it was transferred to benefit her and because she was their daughter. The land was treated as a financial contribution made directly on behalf of the wife, and adjusted accordingly in her favour in the final Property Settlement Ordered. This case was approved more recently by Justice Cronin in the Family Court in Pieters [2014] FamCA 991.

Inheritances

Bonnici [1991] FamCA 86 is a Full Court of the Family Court (very persuasive, if not binding) authority that assets do not fall into a ‘protected category’ merely because they were received as an inheritance. This principle was re-confirmed by the Full Court decision in Holland [2017] FamCAFC 166, where the Court held that property acquired by one or both parties after cohabitation has ceased is not immune from the reach of the Court to quarantine those assets.

The Full Court held that the fact of a recently acquired inheritance would normally be treated as an entitlement of the party in question. The other party cannot be regarded as contributing significantly to an inheritance received very late in the relationship and certainly not after it has terminated, except in very unusual circumstances.

An example of where the Husband was held to have made a ‘substantial’ contribution to the Wife’s inheritance from her mother was in the case of De Angelis [1999] FamCA 1609. In that case, the Full Court held that the Husband’s contributions to the Wife’s mother’s home, through his labours and contributions to the cost of renovations and maintenance, and enabling the Wife to live with her mother to care for her while the Husband managed the home front were relevant considerations to warrant an adjustment to the Husband’s favour under the Family Law Act. The Full Court in that case ordered a 10% adjustment of the Wife’s inheritance, in the circumstances of that matter, that 10% adjustment was worth about $53,000.00.

Significant Post-separation Inheritance

In another case, the Husband received an inheritance of $430,000.00 about 4 years after the parties’ separation. At Separation, the parties’ assets were a modest $581,000, plus superannuation. The Full Court held that the Husband’s inheritance was to be considered as part of the parties’ total net pool, but awarded an adjustment to his favour as it was a contribution on his side of the ledger. The net effect of the final Property Settlement was that a 75-25 ‘contributions’ split to the Husband, but following a 10% adjustment to the Wife for s75(2) factors, the Wife received about $455,000 of the net non-super assets. Put another way, the Wife received about 78% of the assets which were in existence at separation. This decision was reported in the Full Court judgement of Calvin & McTier [2017] FamCAFC 125.

Take Home

The question of gifts and inheritances in Family Law Property Disputes, particularly those gifts or inheritances received late in the parties’ relationship, or even post-separation, is an often-litigated matter, not least because of the emotionally-charged attachment of the inheritance as the legacy of a late family member.

It is important to receive competent advice about the risks and potential claims against such assets. JosephDavid Lawyers are experts in Family Law Property disputes and we are well across the legal principles, precedents and practices to advise and claim in cases of substantial gifts or inheritances received by parties in the context of a Family Law Property claim.

Contact us, obligation free, to see how we can help in your matter. Read through our many glowing client Google reviews to rest assured that your matter is in safe and capable hands.