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VIC Property Rights - Inheritance and Separation?

Discussion in 'Family Law Forum' started by Katharine Thomas, 10 June 2015.

  1. Katharine Thomas

    Katharine Thomas Active Member

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    I have been separated for about 18 months, and my father recently died. I just want to confirm that my estranged husband does not have any entitlement to any inheritance I receive. My mother is still alive so the bulk of the estate goes to her, but he has bequeathed a substantial sum to the children and I want to make sure that my estranged husband is unable to make any claim on the inheritance. I seem to get conflicting opinions. What are my property rights? Thank you.
     
  2. Sophea

    Sophea Well-Known Member

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    Hi Katharine,

    Generally inheritances received after separation remain the property of the beneficiary and not their ex-spouse, however there are situations in which a court will decide that it should be included in the asset pool for the determination of a property division.

    In circumstances where there are very limited funds available in the asset pool, it is more likely that a court will include the inheritance in the asset pool for division, even if it was received after separation, especially where the non-beneficiary partner made a significant financial or non-financial contribution to the relationship

    Your ex may also have grounds to claim a share in the inheritance if for example, he played a significant role in caring for your father before he died etc.

    Therefore if your husband wasn't your father's carer at any stage and there were sufficient assets to divide in your property settlement then the inheritance will likely remain your sole entitlement.
     
  3. Katharine Thomas

    Katharine Thomas Active Member

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    There is a house and super so I think there will be plenty. Also he had nothing to do with the care of my dad.
     
  4. Katharine Thomas

    Katharine Thomas Active Member

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    Also do I legally have to declare it?
     
  5. Sophea

    Sophea Well-Known Member

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    To who your husband or the court? Are you going to court for property settlement?
     
  6. Katharine Thomas

    Katharine Thomas Active Member

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    Don't know yet. Hoping that it can be sorted at mediation. Do I have to tell him about the inheritance?
     
  7. Sophea

    Sophea Well-Known Member

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    I know that there is an obligation on parties to Family Court proceedings to make full and frank disclosure of their assets, however I'm not sure what the deal is with mediation.

    Maybe @AllForHer may know?
     
  8. AllForHer

    AllForHer Well-Known Member

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    I agree with Sophea in that it's unlikely your inheritance would be considered part of the joint asset pool. Even though property settlements are decided based on the financial circumstances relevant on the day of hearing (as opposed to on the day of separation), only assets in which both parties have a shared interest form part of the asset pool. I can't imagine your inheritance would be considered a joint asset because your former party would not have benefited from it or contributed to it in any way.

    In regards to mediation, there will be no repercussions for you if you don't disclose the inheritance during family dispute resolution. All matters discussed there are confidential (bar the obvious exceptions, like disclosure of child abuse, etc.), so they have little bearing on any court proceedings that may follow.

    If it does end up court, though, you are obliged to make full and frank disclosure, as Sophea said, but it's just as likely as not that the court would determine that the inheritance be excluded from the asset pool.
     
  9. Katharine Thomas

    Katharine Thomas Active Member

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    Thank you everyone. Feel better about the situation.
     

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