Can My Separated but Undivorced Spouse Claim on My Inheritance?

Many parents worry that money they leave to a child might end up in the hands of an estranged son‑ or daughter‑in‑law. Australian Family Law allows separated spouses to claim against property, including inheritances, while they remain legally married. That is why timing and legal status matter when planning to pass assets down the family line. When a court looks at a property settlement, it starts by identifying the property pool. This pool generally includes all assets and liabilities of both parties at the time of settlement or trial, not just what existed at separation. Inheritances received during the marriage, including after separation but before divorce, can therefore form part of that pool.

Can a separated spouse claim on my inheritance?

If you are still legally married when you receive an inheritance, that inheritance usually forms part of your property pool. In a later property settlement, your spouse can ask the court to consider the inheritance alongside other assets and liabilities. The fact that you were already separated when the inheritance arrived does not automatically exclude it from consideration.

Instead, the court may treat the inheritance differently when assessing contributions and fairness. For example, if the inheritance came from your side of the family and was clearly intended for you, the court may adjust the division in your favour. But it still sits within the overall pool being divided.

Does a long separation help?

A long period of separation can influence how the court views the relationship. If you have been financially independent for years and your spouse has made no contributions to your assets during that time, the court may take that into account when dividing the property. Separation alone, however, does not switch off your spouse’s right to seek property orders while you remain married.

Because the property pool is valued at the time of settlement or trial, assets you acquire or inherit long after separation can still be part of the pool if a settlement has not yet been finalised. That is why unresolved property matters can become more complicated the longer they are left.

How does divorce change the picture?

Once you divorce, the law introduces a clear time limit. Married couples usually have 12 months from the date the divorce order becomes final to start property settlement proceedings. After that, a former spouse must ask the court for permission to bring a late claim and explain why it is justified. The court only grants this permission in limited circumstances, often where hardship would otherwise result.

From an inheritance‑protection perspective, divorcing and resolving property issues sooner rather than later can help ring‑fence assets you own, including inheritances, from future claims. The specific impact depends on your circumstances and the timing and size of any inheritance.

Practical steps to consider

Common practical steps for protecting inheritances from separated spouses include:

• Finalise property settlements promptly rather than leaving finances intertwined for years after separation
• Obtaining a divorce so the 12‑month property settlement period starts and eventually expires
• Seeking advice before a significant inheritance is likely, so your estate planning and family law strategies can be aligned
• Considering testamentary or discretionary trust structures where appropriate, noting that courts can still look at the reality of control and benefit

Because every family and relationship is different, tailored legal advice is essential before relying on any one strategy.

See also

• Separation and property pools – /legal-matters/drones-rental-cars-parenting-relocation-legal-questions-18-august-2026/
• Property settlement time limits – /faq/family/faq-property-settlement-time-limits-separation/
• Wills and Estates guide – /faq/wills-estates/

1. Family Law Act 1975 (Cth) ss 79, 90SM (property settlement powers and time limits).
   https://www.legislation.gov.au/Series/C2004A00292