Paula Phelan is a Family Lawyer with Specialist Accreditation in this area from the Queensland Law Society. She has been a lawyer for 21 years and is the director of Phelan Family Law, a Rockhampton legal firm specialising in Family Law only.
The breakdown of a married or de facto relationship is a difficult and emotional time for all parties concerned. It can unfortunately lead to highly contested litigation in the Family Court system in regard to the division of property and financial resources.
The treatment of inheritances in Family Law disputes often compounds the very nature of these disputes.
This angst can be due to the significant amount of the inheritance concerned but is often due to the emotional significance attached to any inheritance received by a party from their deceased parent or grandparent.
The party receiving the inheritance often believes that they should retain all of it in accordance with the wishes of the deceased. The other party concerned may claim that it is an asset of both parties and that they are also entitled to a share of it.
In some cases, the other party has been involved in the ongoing care of an elderly parent or grandparent right up to the end of their life. They often feel that they have made a contribution that should be acknowledged. This is particularly the case where the care has extended over several years.
The approach adopted by the Courts when determining how to deal with inheritance depends on a number of factors including:
1. The timing of the inheritance (i.e. was it received prior to the commencement of the relationship or after the parties were separated?
2. Did the party who did not receive the inheritance make any contribution towards it at all?
3. The amount of the inheritance.
After considering such factors, the Court will determine:
Should It be treated as a contribution made by the party receiving it.
Should it be treated as a contribution made by both parties.
Should it be excluded from the pool of assets altogether.
If it is excluded an adjustment may be made in favour of the other party who is not receiving any portion.
In situations where the parties have separated, and the inheritance has not yet been received, the other party sometimes will demand to see a copy of the will of their former partner’s remaining parent or grandparent.
The purpose of this is to claim that the former partner will receive significant funds from the Estate, which needs to be factored into the division of the assets owned by both parties.
Generally, if an inheritance is received in the early or middles stages of a long relationship, it will be included in the pool of assets to be divided between the parties or will be treated as a contribution by the party who received it.
If an inheritance is yet to be received, it will not be included in the pool of assets to be divided between parties; however, it may be a factor that is considered by the Court when assessing the parties’ respective future needs.