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Ask Clare Your Own Question

Clare
Clare, Family Solicitor
Category: Family Law
Satisfied Customers: 33324
Experience:  I have been a solicitor in High Street Practise since 1985 and have specialised in Family Law for the last 10 years
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Not sure which section this comes under but I am in my parents

Customer Question

Not sure which section this comes under but I am in my parents will to receive one third of their estate. My husband of 33 years said he wanted a divorce last year. We tried to make it work but he now says he wants a divorce, I have no issue with this, he is a functioning alcoholic, had affairs and it would relieve me of a very stressful marriage. Obviously we will split everything 50/50 but.... My parents don't want him to have a claim on any inheritance they leave me. He says he wouldn't want it, but I don't for one moment believe him. They are both in their 90's and could obviously die whilst we at still married. I look after them and do all their cooking and pretty much everything really. They could live to 100 and I could be divorced, but they want to ensure he doesn't drink their money away. Can we put a codicil on the will to this effect, or maybe leave my share to my daughter but I guess there would be tax implications as I want to buy a house using some of the inheritance eventually.
Submitted: 12 months ago.
Category: Family Law
Expert:  Harris replied 12 months ago.
Hi, thanks for your question. I am a qualified family law solicitor.
As part of the divorce you will need to come to a financial settlement about the assets of the family and you will need to disclose any inheritance that you are aware you may receive. This does not mean that it will be considered an asset of the family and that your husband will have a right to a share of it.
As part of the financial settlement you can have clauses in the order that prevent your husband making a claim to your inheritance and after agreement about how the capital assets are divided between you it will be necessary to have a clean break in relation to the capital so that your husband can make no future claim to any change of your capital position.
However, if your parents do pass away prior to the financial settlement being agreed, your husband may attempt to bring any inheritance you receive into the financial negotiations and it therefore will be in your interest to do this as soon as possible.
Please let me know if you have any further questions regarding this.
Customer: replied 12 months ago.
I also asked if the inheritance could be,left,to my daughter instead of me to avoid the issue?
Expert:  Harris replied 12 months ago.
It would be up to your parents whether to leave your inheritance to your daughters, but if this was purposefully done in order to prevent your husband making any possible claim to it, then no - as this will be seen as a dissipation of assets and the court will consider it as a dishonest action and could make a less favourable order for you (if it went that far).
As part of your negotiations to settle the finances both you and your husband need to be full and frank about your assets and financial position. If it is later found that either of you had concealed assets or were dishonest in disclosure then an order can be overturned.
Expert:  Clare replied 12 months ago.
HiThank you for your questionMy name is ***** ***** I shall do my best to help you.Please do not worry - if your parents chose to leave the money to your daughter and not to you the Family court will not see it as dissipation of assets as they are not your assets to dissipate.Your husband may argue that you will have access to the funds in the future - but the Court will not see this as an acceptable argument as it lacks suretyThis is not to say i think you shoudl take this option - there is no reason to do so since in any event even if (god forbid) you were to lose your parents now it is not likely that your inheritance would have to be shared with your ex since the decision to end the relationship has already been made.The Court will only look at the inheritance if there are insufficient funds available within the matrimonial assets to adequately meet the housing needs of your ex - so provided there is a matrimonial home your inheritance is safe - you may simply receive less form the house than you might have doneIn case you are concerned there is Case law to this effect so please do not worryClare.
Expert:  Harris replied 12 months ago.
Hi, this question remains open. If you found my information provided helpful please could you rate my response positively so that the question can be closed.
Customer: replied 11 months ago.
I've had two different replies to the question with one contradicting the other! The other person ad used that it would not be dissipation of funds as the funds are not mine and were never intended to be left to my husband. Confusing
Expert:  Harris replied 11 months ago.
My opinion is that if there has been provision for you in a will, and if this is changed whilst divorce and financial proceedings are taking place, then it can be viewed as deceitful.
It will therefore be prudent for you to commence and conclude the financial settlement as soon as possible.
Expert:  Clare replied 11 months ago.
I am sorry for the confusion.My young colleague has confused the provisions that exist in circumstances where a PARTY has dissipated assets and is, understandably, exercising extreme caution.However your case is entirely different.Your parents can change their Will whenever they wish - it is NOT an issue in your control and would NOT be deceitful - even if it was done specifically to ensure that your ex did not receive any part of their estate.This would be the case even if they had in fact left the money jointly to the pair of you.It is THEIR Money and they may do with it what they wish.As I also said - even if they were to die now WITHOUT changing their Will there is little or no chance of your ex benefiting from it but this does not change the fact that your parents can change their Will if they wish and it is NOT dissipation of assetsClare
Customer: replied 11 months ago.
That's fabulous, thanks very much
Expert:  Clare replied 11 months ago.
You are most welcome and I am sorry for the confusion

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