Inherited and gifted assets
The courts' approach, developed through the ample resources case law, is that inherited assets are relevant resources but stand apart from the products of the marriage partnership. The weight given to their separate character depends on when the inheritance arrived, whether it was mingled with family finances or kept distinct, the length of the marriage, and whether the other assets are sufficient to make proper provision without touching it. An inheritance received late in a long marriage and kept separate is in a different position from one received early and used to buy the family home.
Trusts in divorce
A spouse's interest under a trust, whether a fixed interest or the position of a discretionary beneficiary, must be disclosed and can be taken into account as a financial resource. Irish courts look at the reality of the arrangement: the pattern of past distributions, the identity and practice of the trustees, letters of wishes and the degree of practical influence the spouse exercises. A discretionary trust that has in fact paid a spouse's expenses for years will be treated as a resource, whatever the deed says about entitlement. Conversely, a genuine third-party trust with independent trustees and other beneficiaries is not simply an asset of the spouse. Settlements created during the marriage can also be varied by the court in certain circumstances as ante-nuptial or post-nuptial settlements.
Expected inheritances
An inheritance not yet received, land a spouse expects from a parent, for example, is a more speculative matter. Courts are cautious about counting expectations that may never materialise, but in farming families where succession is settled in everything but paperwork, the expectation can form part of the overall picture. This cuts both ways and needs careful evidential handling.
Section 117 and the succession interface
Family law provision and succession law meet at several points: divorce extinguishes Succession Act rights (and orders under section 18 of the 1996 Act can block later applications from a former spouse against an estate), separation agreements routinely include renunciations, and provision made for a spouse on divorce is relevant to any later estate disputes. For clients with significant estates, the divorce settlement and the will should be reviewed together rather than in isolation, alongside specialist tax advice where transfers are involved.
Frequently asked questions
Is my inheritance protected in a divorce?
Not automatically. Inherited assets are relevant to proper provision, but courts recognise their different character and may structure provision to leave them intact where other resources suffice. The facts of each case govern.
Does a family trust have to be disclosed?
Yes. Any interest under a trust, including a discretionary interest, is a financial resource that must be disclosed in the Affidavit of Means.
To discuss a matter in confidence, contact Richard O'Shea at Mary Molloy Solicitors, 2 Rose Inn Street, Kilkenny. Arrange a consultation. This page is general information, not legal advice.