When a marriage breaks down and a couple embarks on the emotionally and legally complex journey of divorce, a multitude of financial considerations arise. Among these is the thorny question of whether one spouse can or should be entitled to any portion of the other’s expected inheritance. This issue, which can involve deeply personal and sensitive family matters, often leads to disputes that test the boundaries of fairness and foresight within the legal system. While future inheritances are, by definition, not yet received and therefore not guaranteed, they can nevertheless play a role in how wealth is ultimately divided between divorcing spouses in the UK.
Understanding the Legal Framework
In England and Wales, the division of assets upon divorce is governed by the Matrimonial Causes Act 1973. This piece of legislation gives family courts wide discretion in dividing matrimonial property according to what it considers to be fair, achieving what is termed ‘equitable distribution’. A central tenet in these decisions is the notion of ‘needs, sharing, and compensation’. The objective is not necessarily a 50/50 division, but rather a fair arrangement given the particular circumstances of the family.
The court considers a range of factors encapsulated in what’s known as the ‘section 25’ criteria. These include the income and financial resources that each party has or is likely to have in the foreseeable future, their financial needs, and obligations, as well as the standard of living enjoyed by the family during the marriage, the ages of the parties, the duration of the marriage, and contributions both financial and non-financial.
A key phrase in this context is ‘financial resources which each of the parties to the marriage has or is likely to have in the foreseeable future’. This is the section under which future inheritance may sometimes, though rarely, be considered.
The Nature of Inheritance
Inheritance can take many forms: cash bequests, property, company shares, or even a beneficial interest in a trust. However, the overarching quality that most future inheritances share is their contingent nature – they are not guaranteed. It is impossible to know with certainty whether someone will receive what has been promised or even anticipated, or when that might occur. An elderly relative may live on unexpectedly, assets may dwindle with increased care costs, or testamentary wishes can be altered at any time.
Additionally, inheritance is often considered to be ‘non-matrimonial’ property – gifts or assets acquired by one spouse independently of the marital partnership. This means it may be treated differently than assets acquired through joint efforts during the marriage, especially in cases where the matrimonial needs can be met without touching that inheritance. Courts usually uphold the general view that inheritance should be protected for its intended recipient, unless compelling reasons dictate otherwise.
Categorising Assets: Matrimonial vs Non-Matrimonial
This distinction plays a vital role in divorce proceedings. Matrimonial assets generally include those accumulated during the course of the marriage. This typically encompasses the family home, joint savings, pensions accrued during the relationship, and other jointly accrued wealth.
Non-matrimonial assets, by contrast, are those acquired before the marriage or after its breakdown, often by gift or inheritance. The common legal presumption is that these do not form part of the pot to be divided unless needed to meet the financial requirements of the spouse or children.
However, things become more complex when non-matrimonial assets have been intermingled with matrimonial property — such as when an inherited sum is used to renovate the family home or invested in a joint business venture. In such cases, their ‘non-matrimonial’ nature may be diluted or entirely lost.
Can Future Inheritances Be Considered?
As a general rule, family courts in England and Wales are cautious and reluctant to include future inheritance prospects as assets subject to division. The concept is too speculative – after all, someone cannot spend what they do not yet have, nor can they be forced to part with something they may never receive. That said, there are exceptions, and the idea is not entirely disregarded.
If a future inheritance appears to be a near certainty — say, in situations where a party is the only child of a wealthy, elderly parent with a long-established will and no dependents — the court may take it into account under the ‘resources’ limb of section 25. It is more likely, however, to be considered at the periphery of the equation rather than be treated as a divisible asset.
The case of White v White (2000) set a strong benchmark by reinforcing the importance of fairness and rejecting discrimination between breadwinner and homemaker. Yet even with strong principles of equality at play, the issue of future inheritance remained largely untouched in subsequent key cases, suggesting a hesitancy to speculate about events that may never materialise.
Notable Case Law and Judicial Approach
In general, the courts shy away from treating future inheritance in divorce cases unless particular conditions are met. One significant case that touches on these concerns is Alireza v Radwan (2017), in which the Court of Appeal reiterated that while the Court may consider prospective inheritances in certain scenarios, it must be cautious when doing so.
Another key case is C v C (Financial Provision: Personal Damages) [1995] in which future inheritance was briefly mentioned. The wife had tried to argue that the husband was due to receive significant inheritance shortly and that this should influence the financial award. The court was unconvinced, preferring instead to base its decision on actual and not potential resources.
These cases highlight the prioritisation of factual and existing financial circumstances over hypothetical wealth. Unless a potential inheritance is imminent, substantial, and nearly guaranteed, courts will usually avoid giving it significant weight.
Protecting Inheritance and Family Wealth
Given the potential for divorce proceedings to draw in significant family wealth, including possible future inheritances, many families attempt pre-emptive strategies. One of the most common is the use of prenuptial or postnuptial agreements.
Though not currently legally binding in the UK, prenuptial agreements have gained increasing judicial support since the landmark case of Radmacher v Granatino (2010). The Supreme Court ruled that these agreements should be upheld if entered into freely, with full understanding of implications and without undue pressure, provided that doing so is fair in the circumstances. An agreement that clearly defines the treatment of inherited or future family wealth can serve as persuasive evidence of intention and often carries significant weight in judicial determinations.
Additionally, families can also establish protected trusts, which may shield inheritance from marital claims by making it less accessible to either party upon divorce. Trusts that are discretionary and allow trustees to determine when and to whom distributions are made — rather than giving the beneficiary an outright or guaranteed entitlement — can be particularly effective. However, overly aggressive protection can be legally challenged under the doctrine of ‘sham trusts’ if the court believes they were established to deliberately avoid financial responsibilities in divorce.
Balancing Fairness and Future Possibility
The question of whether someone should have a claim on a future inheritance often brings with it more philosophical questions than legal certainties. On the one hand is the belief in equitable division; on the other, the notion that individuals should not be deprived of legacies meant specifically for them by independent third parties.
The tension between these competing priorities can be particularly acute in long marriages, where one spouse may have sacrificed career growth for childcare or domestic responsibilities, relying on a shared financial future that includes anticipated inheritance. In contrast, in shorter marriages with fewer joint assets, it would seem disproportionate to include potentially vast windfalls that may never even materialise.
A further complicating factor arises when the needs of dependent children are considered. Courts are often guided by what is in the best interests of the child when determining the financial arrangements post-divorce. If the only way to meet housing or educational needs is by taking into account an imminent inheritance, judges may feel more inclined to use their discretion accordingly, especially if doing so avoids undue hardship.
The Role of Financial Disclosure
During financial remedy proceedings, both parties are required to provide ‘Form E’ disclosure — a comprehensive statement of all current and foreseeable financial interests. This includes not only existing savings and income but also future interests and expectations, including those related to inheritance.
Still, the question remains: how accurate is one’s expectation of a future inheritance? Will an individual accurately disclose the existence of a wealthy elderly parent, or a will in which they are named as beneficiary? Does the spouse even have insider knowledge of such private affairs? The incomplete or inaccurate disclosure of potential inheritance can create additional complications, extending proceedings and increasing distrust. Conversely, transparency from the outset allows the court to better determine the matter with discretion and fairness.
Conclusion
The inclusion of future inheritance in divorce proceedings is an area that lies more often on the margin of the law than at its centre. Courts in England and Wales place great emphasis on tangible resources and known financial realities. While the idea of accessing a spouse’s future inheritance may appeal to some from a fairness standpoint — particularly in long marriages — the law remains circumspect and highly contextual.
Whether preserving personal legacy, navigating sensitive family dynamics, or ensuring equitable treatment in the distribution of wealth, the issue demands thorough legal advice and, where possible, proactive planning. The unpredictability of inheritance, coupled with the discretionary nature of family law, means that no two cases are likely to be treated the same, but rather approached with bespoke attention to both substance and nuance.
Ultimately, the question is not solely about whether courts can consider future inheritance in divorce — they can, under limited circumstances — but rather whether they should, bearing in mind the fragility of financial predictions and the enduring importance of fairness in reshaping lives after marital breakdown.