Inheritance and Divorce (& De Facto Relationships)
Inheritance and divorce | Inheritance and de facto relationships
If you are looking for information about what happens to an inheritance in divorce or de facto separation, you are in the right place. If you are proactively seeking information about how to protect assets and inheritances in a new relationship or impending marriage, then you may be more suited to the information on this page
Whether you are considering separation or already separated from your de facto partner or spouse, here you can expect answers to common questions like these about how assets, gifts and inheritances are treated in Australia:
- Can my de facto claim my inheritance?
- Can my ex claim my inheritance after divorce?
- Can my ex wife claim my inheritance?
- Is a separated spouse entitled to inheritance?
- Can future inheritances be included in divorce settlements or de facto property settlements?
Before we unpack the answers to these questions, we must first clarify some commonly used terms that will be used below, and you will become familiar with during the processes relating to financial separation:
Divorce Settlement, Financial Settlement and Property Settlement are names used interchangeably which have the same meaning – the division of assets and liabilities upon the end of a marriage or de facto relationship.
A Property Agreement or Financial Agreement are the names given to the legal documents that detail the terms of the property division between two parties.
Separated or Divorced?
If you are currently separated from your de facto partner or spouse, or you are divorced, to be able to answer your question accurately requires some further questioning, to point you to the right information.
If you are separated from your spouse, or have already divorced, read on below.
If you are currently in a de facto relationship, or recently separated from your de facto, jump to this section here for insights specific to your circumstances.
Is a separated spouse entitled to inheritance?
If you are separated from your spouse but not divorced, and you have not completed your Property Settlement yet, then the information directly below will be relevant to you.
If you have completed the Property Settlement process, pick up from the Scenario 1 section here.
Can my ex claim my inheritance after divorce?
If you are divorced, there is a requirement for you both to have completed the financial settlement (property settlement) process within 12 months of your divorce being finalised.
The answer to whether your ex can claim inheritance after divorce, starts by clarifying whether:
- Your Financial Settlement has been completed; or
- Your Financial Settlement is yet to be finalised If this sounds like you, jump to this section here.
Scenario 1: Your Property Settlement is finalised
If your property settlement has been completed, to answer your question, the next questions you will need to answer are as follows:
- Was the Agreement submitted to the Family Court and turned into Consent Orders?
- Did you and your ex get independent legal advice about the terms of the Agreement?; or
- Did the Court determine the outcome of your Property Settlement?
Was the Agreement submitted to the Family Court and turned into Consent Orders?
If the Agreement has been submitted to the Family Court and Consent Orders (Property Orders) granted by the Court, your ex may still have an avenue to set aside the Orders, making them no longer legally binding. This means that you will have to undertake your property settlement process again. This is a possibility based on the proximity of the inheritance to the date of the Orders, and whether you knew of the expected inheritance and did not disclose it. So too, risk arises when your former spouse was actively involved in the care of the person who left you the inheritance.
Did you and your ex get independent legal advice about the terms of the Agreement?
If you each received independent legal advice about the terms of your Property Settlement
If you did each get independent legal advice about the terms of the Agreement, and it has been turned into Consent Orders (or Property Orders as it’s often referred), then your ex would not likely be able to make a claim. That is, unless you did not disclose an imminent inheritance (gift or windfall) during the initial property settlement processes.
If you did not each receive independent legal advice
If you did not each get independent legal advice about the terms of the Agreement, then your ex may be able to apply for the Agreement to be set aside by the Court, making it no longer legally binding.
If this occurs, the entire process needs to start over. And importantly, it is the combined property pool at that new, later point in time that is then up for division. That said, it doesn’t diminish your ability to argue that the inheritance should be quarantined, or otherwise a significant financial contribution made by you.
That’s why it is essential to seek legal advice, even if you are both on the same page, before negotiating and signing any Financial Agreement.
If it comes to light that someone had hidden assets or withheld information about an imminent inheritance, that person may be ordered to pay all of the costs of the other party, as a consequence of not providing full financial disclosure the first time around.
If the Court determined the outcome of your Property Settlement
If the Court has determined the outcome of your Property Settlement then the answer to the question ‘Can my ex claim my inheritance after divorce?’ is likely no. However, there is an exception to this if it comes to light that you did not provide full and frank disclosure of your financial circumstances (however those finances change) throughout the process.
So, if one person from the relationship is in receipt of an asset, financial gift, or they become aware an inheritance is imminent, at any point in time up until signing the Financial Agreement or submitting Orders to the Family Court, and do not disclose this information to their ex, then the ex may be able to make a claim on the inheritance in the future.
Scenario 2: The Property Settlement is not yet finalised
Depending on whether you have been in a de facto relationship or marriage, the time frames for when a property settlement is required to be finalised varies.
De Facto Relationship
Before we can answer the question “Can my de facto claim my inheritance?”, we must unpack how the process works for de facto relationships.
The law requires people who have been in a de facto relationship to have finalised their property settlement within 2 years from the date of separation. If 2 years has yet to pass, get the process started as soon as possible.
You must each seek legal advice and the process takes time to be approved by the Court. So, despite there being plenty of time, it can be risky to delay starting and wrapping up the process, not to mention not being able to move on with your life.
If more than 2 years has passed and you have not finalised the property settlement, or it is approaching, you must seek family law advice first. You will need to make an Application to the Family Court for a property settlement out of time. This creates a jurisdictional hurdle you must first jump, before the Family Court will determine your Application for a property settlement. There are arguments for and against this. For example, if you and your former spouse don’t share any joint property, it may be in your interest to let the limitation period run out. However, if you do have joint property, you will require Orders or a Financial Agreement providing for the division of that property, particularly for houses where a transfer pursuant to Orders or a Financial Agreement mean you will receive an exemption on stamp duty for the transfer.
Then, if an inheritance is received before the property settlement has been finalised formally into Property Orders, it may be considered in the asset pool or quarantined separately. The basis for how the inheritance is characterised will depend on the particular circumstances of your matter. Seek advice from a family lawyer with experience in these more complex matters to learn whether that will be the case in your situation.
Married
The Court requires divorced couples to have finalised their property division within 12 months of the Divorce Orders being granted (the certificate confirming the Divorce has been processed).
If the property settlement is not yet finalised but you have finalised your divorce with the Court, you will be in one of these two circumstances:
- Less than 12 months has passed since the Divorce was finalised by the Court
- More than 12 months have passed since the Divorce was finalised by the Court.
Less than 12 months from date of Divorce Orders being granted
If less than 12 months has passed from the date on your Divorce Orders (the document provided 1 month and 1 day after your divorce hearing), be aware that the process takes considerable time to get your agreement finalised and formalised. It is very easy for 12 months to pass, requiring you to make an extra application to the Court to have your property settlement finalised out of time. This is a costly exercise.
More than 12 months has passed from date of Divorce Orders being granted
If more than 12 months has passed from the date on your Divorce Orders (the document provided 1 month and 1 day after your divorce hearing), you will need to make an Application for a Property Settlement out of time.
In both scenarios, if an inheritance or windfall is received before the Property Orders have been approved by the Court, it may be up for division. Each scenario is uniquely different so to know if that will be the case in your circumstances, seek advice from a family lawyer highly experienced with inheritance related matters.
The Property Settlement split
As we explain to people at all stages, it is always wise to get started on the property settlement process as soon as possible because, the division of the property pool is calculated on what the property pool is at the time of the Agreement being finalised (or Court Orders being issued).
That is, whether the asset pool dwindles or increases during this time, that is what will be up for division. And, if an inheritance comes in while the property settlement is yet to be finalised, it may also be included in the asset pool for division.
But what about future inheritances?
Can future inheritances be included in divorce settlements or de facto property settlements?
Generally speaking, future inheritances that will be incoming to one party after a Property Settlement is finalised are not considered part of the property pool for division. That being said, there are rare circumstances where the Court may exercise its discretion to include the inheritance in their consideration of what orders are just and equitable for the purpose of division of property between the parties.
For example, in the case of Tullock & White, one that is often referred to when there are disputes about whether a future inheritance should be included, it is not about whether the non-beneficiary will get a cut of the inheritance, it is related to the requirement of the consideration of “future factors” when determining the property settlement and the “imminence” of receipt of the inheritance. On 10 June 2025 the law changed as to property settlements and “future factors” are now known as “current and future circumstances”.
As part of the calculation of what is a just and fair outcome for the property settlement, there can be a debate as to whether an asset, or future inheritance in this case, should be considered as a future financial resource – that is, an income-generating asset/assets – when adjusting the property split for “current and future circumstances”.
In this case, the husband’s lawyer argued that due to the impending income generating asset/s coming the wife’s way, an adjustment for a larger share of the existing asset pool for the wife shouldn’t be included.
Do you have to split an inheritance in divorce or de facto property settlements?
Other rare circumstances where a future inheritance may be considered is:
If the inheritance is the only significant asset of the former couple and when considering the “future factors” of both parties, would warrant consideration of the division of a certain and imminent inheritance.
When a non-beneficiary spouse or partner has been involved in the caregiving of the testator (will-maker).
As a guide, a future or expected inheritance is only included in exceptional circumstances.
Inheritance and divorce: Financial separation clarity
From reading this page you can tell that there are many varying scenarios and it is not always the case that an inheritance is protected or that it will be considered in the property pool.
If you are looking to protect a future inheritance, speak to an experienced family lawyer to get advice that will take into account your exact circumstances and advise you on the options that may be available to you.
If you are looking to learn whether an inheritance solely intended for you will be up for division in the event of your relationship ending, also seek legal advice from a family lawyer. We work with our clients on more complex financial matters like these every day, and work with their other trusted advisors like accountants and financial advisors to work towards the most desirable outcomes.
