Protecting Your Inheritance During Divorce

Inheritance can be a complex issue to navigate during divorce proceedings.  Will one spouse be entitled to proceeds from the inheritance of the other spouse?  There’s rarely a simple answer.  Many assume that with a will in place, ownership of proceeds of inheritance is iron clad, but this isn’t always the case.

Keeping an inheritance separate and distinct from other marital assets can become very important to some.  Many become more protective of inheritance funds in a second or subsequent marriage, or with the desire to have the money follow direct lineage, or when following a strict interpretation of the wishes of the will.  These and other motivations can all factor into the reasons for wanting to keep those assets separate.

Where To Start?

Start by talking to an experienced family lawyer, as the complexity surrounding inheritance makes it difficult to make any blanket statements that will cover all possible scenarios. Jason P. Howie is Certified as a Specialist in Family Law by the Law Society of Upper Canada and has been practicing family law for over 25 years.  Jason has spent the last two and a half decades establishing a network of experts and professionals, such as estate lawyers and accountants, who can be called upon to help keep inherited assets protected.

It is important to remember that the onus to protect inheritance falls on the spouse to whom the inheritance was originally awarded.  As noted above, the will itself may not be sufficient to protect inheritance during divorce.  An experienced family law lawyer like Jason Howie can explain the ramifications of some important starting questions:

Were the inherited assets held separately?  The best course of action is to place any monies received through inheritance, and any interest those funds generate, into separate and distinct accounts.  Keeping the money separate and distinct will make it easier to track and distinguish from any other assets during divorce settlement.

Was any part of the inheritance used for shared family assets?  For example, if a portion of an inheritance was used to pay down a loan or mortgage, it can be argued that the inheritance has become joint property.

What was the timeline for inheritance?  Timelines may impact the status of an inheritance.  Was the inheritance received before the marriage, or during the marriage?  Inheritance received during the marriage may be counted as net family property, while inheritance received before the marriage likely will not.  A knowledgeable family law lawyer can explain the ramifications of both on the likelihood of inheritance retention.

Is there a valid Marriage Contract in place?  A marriage contract, sometimes referred to as a prenuptial agreement, can help to establish a more structured separation of funds and assets during a divorce.

Further Questions Regarding Inheritance?  Contact Jason P. Howie

To speak with an experienced Windsor family law lawyer about divorce and specifically how inheritance will be treated during a divorce, call 519.973.1500 or contact us online. We serve clients in Windsor, Essex County and throughout the region.