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  1. #1
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    Default Legal type question re inheritance

    My father is terminally ill and has days or weeks to live. He is leaving myself and my sister a fairly sizeable inheritance. We are both married with small kids, but both often wonder if our marriages are set to last the distance. My hubby has cheated on me online a and we spent 12 months in marriage counselling to try to patch things up. We are reasonably ok ATM but I don't really trust him and will tell him to leave if he ever does it again. It's a fairly loveless marriage at times but ok and with small kids we are soldiering on.

    My question is this: if we do split down the track, I assume that he will be entitled to half of this inheritance. The inheritance itself would make me financially independent if he was to leave, but not if he takes half of it. Does anyone know if we can draw up some agreement that this is my money if we do split down the track? I haven't broached this with DH and I suspect he would be offended, but his misdemeanours in the past make me nervous. We will use it to reduce our debt for now, and I'm happy to share it with him while we are together, but if one day we aren't I want to be able to walk away with it....does anyone know if that's possible?

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    I'm not 100% sure but I think inheritances are treated differently when divorcing. Technically it wasn't left to your husband so why should he get half. Hope someone with more concrete knowledge can chime in.

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    I would think an inheritance wouldn't be treated differently as even if it was left to one person you are in relationship so it is viewed as joint like everything else. Personally I don't think it's fair to expect to walk away with it when/if your relationship should end. Would you expect to be entitled to your partners super if you separated? Not sure how it all works though but curious to know.

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    Default Legal type question re inheritance

    How inheritances are treated in a separation is very complex.

    If you receive it before you separate yes it does form part of the asset pool which would be divided. But how it is divided will depend on each party's contribution to the overall assets and the amount of the inheritance relative to the total asset pool.

    In short there's no simple answer. You could get him to sign a document agreeing that it won't be touched in the event of a divorce but if the family court decides that's not fair they can set it aside.

    You need to see a family lawyer. If you are seriously considering separation it may be better to do so before your father passes.

    Sorry you are in this circumstance. I imagine life is stressful enough with your father being so ill.

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    Quote Originally Posted by Sonja View Post
    How inheritances are treated in a separation is very complex.

    If you receive it before you separate yes it does form part of the asset pool which would be divided. But how it is divided will depend on each party's contribution to the overall assets and the amount of the inheritance relative to the total asset pool.

    In short there's no simple answer. You could get him to sign a document agreeing that it won't be touched in the event of a divorce but if the family court decides that's not fair they can set it aside.

    You need to see a family lawyer. If you are seriously considering separation it may be better to do so before your father passes.

    Sorry you are in this circumstance. I imagine life is stressful enough with your father being so ill.
    This is correct

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    Default Legal type question re inheritance

    go talk to an accountant or estate planning lawyer, they can give you all the advice you need.

    a testamentary trust with only you listed as a beneficiary is a way to protect this inheritance. otherwise it forms part of the deceased estate and you get income generated by the assets in the estate. again, if you and your sister are the only listed beneficiaries, there's no way the husbands can get a share of it.

    the key thing is all this needs to be in place and ready to go before he passes. so you'll need to go talk to a chartered accountant and/or lawyer about estate planning. once he's passed, it'll be too late.

    time is of the essence if you're serious about getting this structured correctly.

    http://www.dixon.com.au/knowledge-ce...amentary-trust

    http://www.dixon.com.au/knowledge-ce...amentary-trust

    a bit of light reading there. I'm in no way affiliated to Dixon advisory by the way, just felt the website explained things nicely and clearly.

    the second link discusses how a testamentary trust can be used for asset protection by a beneficiary in the event of a marital breakdown.

    I'd be familiarizing myself with this then going to see a lawyer or accountant who can get things in motion for you.

    hope that helps.

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    FWIW OP exdh inherited sum money several years before we separated. I was entitled to a lower percentage of the asset pool due to the inheritance. This was worked out on lawyer negotiations. I have no idea how things would have panned out if we ended up in court.

    I would also urge you to obtain professional advice on how best to structure your finances.

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    Ngaiz  (31-01-2016)

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    Quote Originally Posted by Blessedwith3boys View Post
    I would think an inheritance wouldn't be treated differently as even if it was left to one person you are in relationship so it is viewed as joint like everything else. Personally I don't think it's fair to expect to walk away with it when/if your relationship should end. Would you expect to be entitled to your partners super if you separated? Not sure how it all works though but curious to know.
    Inheritances and super are treated completely differently when calculating financial separation.

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    Quote Originally Posted by SSecret Squirrel View Post
    Inheritances and super are treated completely differently when calculating financial separation.
    definitely. nothing in common.

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    Put it in a trusted other family name. Like your sisters or something lol


 

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