We are regularly asked whether the future inheritance prospects of a client or their spouse is likely to be considered in the resolution of divorce finances.
Generally speaking, to be taken into consideration, future inheritance needs to be foreseeable. As a result, the Court will very rarely take it into consideration in meeting the needs of the parties. However, each case will turn on its own facts.
What factors do divorce courts consider in regards of future inheritance?
The Court will consider all relevant factors, such as the age and health of the person who would provide the inheritance and their capacity to change their Will.
If, for example, the person who would be providing the inheritance has already exceeded their life expectancy, and if they no longer have the mental capacity to change their Will (as a result of an illness, such as dementia, for example), it could be possible to successfully argue that the resultant inheritance is foreseeable.
In comparison, if the donor of the inheritance is significantly younger than their life expectancy, is in good health and has the capacity to change their Will, the Court is more likely to determine that the future inheritance is not foreseeable. In that case, they may say that the inheritance should not be taken into consideration.
In those circumstances, it may not be known how much the possible inheritance will be, if any. The donor may in the future change their Will to exclude the potential beneficiary, or spend the majority of their estate, leaving little or no inheritance.
Each case will be determined on its own facts.
It is essential to take advice at an early stage in relation to your specific circumstances, in the event you are considering separation or divorce.