Is An Estranged Spouse Entitled To Your Inheritance?

Date: November 30th, 2012 - Written by: Brookman Solicitors

Henry Brookman provides the answer to a Financial Times’ ‘Wealth Question’ regarding whether an estranged wife has the right share to her husband’s inheritance.

Financial Times Wealth Question:

“My wife and I have been separated for almost a year, and in that time, my father sadly passed away leaving me a considerable sum of money.  I am concerned that even though my wife and I have been separated for some time, she is still likely to gain a portion of my inheritance.  Is there anything I can do to avoid this?”

Henry Brookman’s Response:

Your wife is not automatically entitled to a share of your inheritance.  The English and Welsh legal system allows the judge to use their discretion in order to reach a just and equitable outcome.  To do this, the judge essentially follows a three-stage process.

Firstly, the judge establishes what assets are held by, or available to, you and your wife.  This defines the total pool of assets.  Secondly, the judge must work out the percentage allocation between parties.  The starting point is to divide assets equally, however, the judge will also consider other factors such as whether the assets came mostly from family contributions on one side or the other, or whether a significant contribution came from either party, or whether your  wealth has developed though the equal joint efforts of you both.  In your case, a sizable chunk of your wealth has come from your inheritance, rather than your joint efforts.

The third stage is for the judge to step back and decide whether the percentage allocation would, overall, be fair for both parties.  If your wife is still caring for your children and therefore has limited earning capacity, it may be less fair for her to receive a smaller percentage allocation.  However, if the pool of assets is large, a smaller percentage allocation may equate to a significant amount of money and therefore could be a fair allocation.

The judge will also consider whether spousal maintenance is needed.  You might, for example, come to an agreement where your wife receives a larger percentage of the assets, but does not receive spousal maintenance.

Unless you are an extreme risk taker or are willing to leave the country almost permanently, there are no practical ways to place your assets beyond the court’s scrutiny.  Moving the money to obscure offshore trusts for instance could in fact result in the judge penalising you.

If you would like to know more about this issue please contact Brookman Solicitors for more information.

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