• Skip to main content
  • Skip to footer

Family Law Specialists Edinburgh, Glasgow

  • Home
  • Our Services
    • Divorce & Separation
      • Collaborative Divorce
      • Divorce in Scotland
      • Expat Divorce & Separation
      • Finances
      • What should I expect?
    • Your Options
    • Children
      • Children and Divorce / Separation
      • Child Contact (Access)
      • Child Residence (Custody)
      • Modern Families
      • Parental Responsibilities and Rights
    • Modern Families
      • Fertility Fixed Fee Package
      • Assisted and Donor Conception
      • Surrogacy
      • Adoption
      • Parenthood for the Modern Family
      • Succession rights and estate planning for modern families
      • Family Friendly Employment Rights
    • Prenup & Cohab
    • Social Media Misuse
  • About Us
    • Why Us?
    • Our Experts
    • Testimonials
  • Our Costs
    • Fixed Fee Package
    • Fixed Fee Undefended Divorce
    • Fertility Fixed Fee Package
  • FAQ
  • Blog
    • Video Blogs
  • BTOyouStart
  • Contact Us

September 19, 2019 By Brittany Thomas

Inheritance, Gifts and Divorce – what you need to know

If you have ever received an inheritance or gift you will be well aware that these items can very often hold great sentimental value. However, not only can they hold a place in our hearts, these items can also hold significant economic value.

Inheritance, Gifts and Divorce – what you need to know Therefore, you would be quite right to be concerned as to what would happen to these items in the event that you were to separate from your spouse or civil partner. So, how do we treat inherited/gifted property on divorce or dissolution?

Matrimonial (or partnership) property

The law makes provision for the redistribution of assets (and debts) at the end of a relationship where a couple have either been married or in a civil partnership.

In doing so, the law would first wish to determine what the matrimonial (or partnership) property is in order that they can then undertake such a redistribution. Matrimonial (or partnership) property is generally defined as the property acquired by the spouses (or civil partners) either:

  • Before the marriage (or civil partnership) for use by them as a family home,
  • As furniture or plenishings for such a home, or
  • During the period of marriage (or civil partnership) but before the relevant date.

Inheritance or gift

This all seems very straightforward. However, with every rule there is, of course, an exception and in this case it is a very important exception if you are concerned about what may happen to an inherited antique clock or a gifted painting of your favourite sea view. The exception is that matrimonial (or partnership) property does not include items which have been acquired by either party by inheritance or gift from a third party.

What this means is that if you did indeed inherit an antique clock or were gifted a painting, then they would not be classed as matrimonial (or partnership) property. Therefore, such items would not be included in the redistribution of matrimonial (or partnership) property and are yours to do with as you wish.

Changed “form”

So far, so good. However, what happens if you didn’t like the antique clock you inherited or the painting wasn’t really to your taste and you sold them? If you sold the antique clock or the painting then the sale proceeds automatically become matrimonial property because they have changed “form”.

For example, if you were to sell the antique clock and use it to buy a new car then the car is then classed as matrimonial (or partnership) property because it is no longer in its original “form” as a clock. This would therefore mean that the item falls within the definition of matrimonial (or partnership) property and can be distributed according to the provisions set out in the law.

Special circumstances

Scots Law sets out that matrimonial (or partnership) property should be divided fairly, and this most commonly means equally (i.e. a 50:50 split). Again, as with every rule, there are exceptions to the rule that fair sharing means equal sharing. The exception being that where there are special circumstances in a case, they may justify a departure from equal sharing.

One such circumstance is that the “source of funds” used to acquire the item of matrimonial property comes from an inheritance or gift to one spouse (or civil partner). This means that the source of funds used to acquire the piece of matrimonial (or partnership) property should be taken into account and equal sharing may be departed from.

Grey area

This exception therefore creates a grey area regarding such items. You should, however, be alive to the fact that although “source of funds” arguments may justify departure from equal sharing, they cannot require it.

In each case what matters is fair sharing, and therefore you cannot ever know with complete certainty how much credit you would receive back for such an argument from the court (if you were to argue this matter before a sheriff or judge).

Where the source of funds is a relevant circumstance, there is no defined rule about how that should be taken into account by the court. As previous cases have shown, much will depend on the broader facts and circumstances of the case.

Understand your situation

As you will see, matrimonial (or partnership) property will need to be looked at carefully if you find yourself in a situation where you are separating from your spouse (or civil partner) and you have funded items from inheritance or gifts from third parties. We would therefore encourage you to seek legal advice in order to better understand your situation as a matter of priority.

More to Read

gifts-inheritance-who-gets-what-in-divorce-separationGifts & Inheritance – Who gets what on Divorce or Separation secret-credit-card-debtDo I really have to pay for half of my spouse’s secret credit card debt? When is Generosity a bad thing? Are Diamonds still a Girl’s Best Friend?

Filed Under: Finances, Separation and Divorce Tagged With: divorce, gifts, inheritance, matrimonial property, partnership property

Brittany Thomas

Brittany Thomas

Brittany is a Solicitor within our Family Law team. Brittany is both empathetic and conscientious in her role as a family lawyer. Read Brittany's professional biography.

What our clients say

I won’t hesitate to put them in touch with you

Looking back I wish my ex-wife and I would have gone down the collaborative divorce path but as you know she chose a very different way which ended up being most certainly a longer, more stressful and more expensive path for both of us. Should I ever hear of anyone whose marriage has reached that… Read more “I won’t hesitate to put them in touch with you”

Read more testimonials

I will definitely recommend you…

Hi Marjory, thanks again for being an absolute joy to work with during this unknown and nerve-wracking process. You made me feel calm and reassured throughout (not an easy task). I will definitely recommend you to anyone else looking for representation.

Read more testimonials

After all these years I’m finally free

Thank you so so much Amanda. Actually there’s no words to thank you. I feel great. After all these years I’m finally free. Thank you.

Read more testimonials

Things have been finalised in about twelve weeks

Amanda, many thanks for seeing all this through for me. I cannot believe that after the best part of two and a half years of frustration (pre BTO), things have been finalised in about twelve weeks.

Read more testimonials

We would not have managed this without you

Marjory, I think we can all honestly say that we would not have managed this without you, truly you have been an absolute star and we are all very thankful.

Read more testimonials

Their service and support has been excellent

After quite a complex case, I can say that their service and support has been excellent.

Read more testimonials

I would like to thank my exceptional Scottish team

My dear legal team! I have been writing this letter of thanks in my head since about two months ago, and didn’t know it would take a bit longer than expected to actually be able to express my deep gratitude to you ALL for winning this tough and enduring process for me……I would like to… Read more “I would like to thank my exceptional Scottish team”

Read more testimonials

Our anxieties were greatly alleviated

Lesley, thank you so much for all your help. It turned out to be a very uncomplicated matter in the end and probably not the most interesting for you. However our anxieties were greatly alleviated with your advice and work

Read more testimonials

I have come out of the process a much stronger person

I would have no hesitation recommending Lesley Gordon to anyone I know who needs the services of a divorce lawyer. It was a very positive experience all things considered and I have come out of the process a much stronger person thanks to Lesley.

Read more testimonials

Help during this extremely difficult time

Debbie, I would just like to thank you for your help during this extremely difficult time. I really appreciate it.

Read more testimonials

Excellent communications and support

Many thanks for your recent work related to my divorce…..I would particularly like to thank Amanda Richardson for her excellent communications and support.

Read more testimonials

Very approachable manner

Many thanks Marjory for your very approachable manner during our meetings.

Read more testimonials

Thank you for your professionalism and talent

Thanks Debbie, as always, for your professionalism and talent, it has been a pleasure.

Read more testimonials

I left the offices empowered and liberated

Just wanted to say huge thank you to Lesley Gordon. I left the offices empowered and liberated. Not sure any psychologist would have done a better job! On top of her real job.

Read more testimonials

Great service

Beverley thank you so much for all your hard work and making things run as smoothly as possible. Great service.

Read more testimonials

An Excellent Lawyer…

Beverley thanks for all your assistance with everything. It’s much appreciated and rest assured should I ever need an excellent lawyer in the future you will be the first to be called.

Read more testimonials

Forever I will be grateful…

Marjory, forever I will be grateful and thankful to you for all the hard work you did for me and my family. Thank you very much again and again. I am so very blessed in life that I found a lovely understanding person like you. Not many lawyers would say go and have a cup… Read more “Forever I will be grateful…”

Read more testimonials

You have smoothed the pathway with your efficiency

Amanda…May I take this opportunity to thank you for your help in these matters. Although I am a resilient person, it has not been easy, but you have smoothed the pathway with your efficiency…

Read more testimonials

I came out of your offices feeling great!

Marjory, thank you for a really positive meeting on Friday. I feel things are a lot clearer in my head – I came out of your offices feeling great!

Read more testimonials

Your advice has been incredibly helpful

Beverley thank you for everything you’ve done regarding my case and for your assistance in getting the many issues resolved and matters concluded. Your advice has been incredibly helpful and greatly appreciated. Should I require any further assistance, I will be in touch.

Read more testimonials

Outstanding job…

Marjory… you are doing an outstanding job… Thanks again for your support and expertise in helping me navigate through this horrible situation. I really appreciate it.

Read more testimonials

I was very pleased with how things went today

Hi Beverley – I would just like to email you to thank you for your services today and commend you on doing a stellar job. I was very pleased with how things went today. The level of professionalism you showed was much to my satisfaction and greatly appreciated. I felt very relaxed at having you… Read more “I was very pleased with how things went today”

Read more testimonials

Always appreciated being able to rely fully on you and the team

Amanda and Lesley, thank you to you both for all your help, now and during last year, and, as I said before, I have always appreciated being able to rely fully on you and the team at all times. Obviously, a very sad time for me but I am relieved that it is at an… Read more “Always appreciated being able to rely fully on you and the team”

Read more testimonials

Help guiding us through a very stressful time

I would like to thank you again for all your work and help guiding us through a very stressful time.

Read more testimonials

I am eternally grateful

I am in no doubt I have made the correct choice by having BTO Solicitors represent me in such a difficult time. I am under no illusion you and your team will continue to do the best for me in future. Many many thanks for today. I am eternally grateful.

Read more testimonials

Highly professional and excellent services

Debbie, I would like to express my sincere gratitude for the highly professional and excellent services I received from yourself and your team.

Read more testimonials

Such a lovely welcoming manner

Beverley, just wanted to say thanks so much for your fertility law training session provided for the group last night! It was super helpful and everyone really appreciated it. You have such a lovely welcoming manner which I think really helped people feel comfortable to ask questions.

Read more testimonials

From our first meeting, I felt confident…

Hi Debbie, I wanted to take this opportunity to pass on my gratitude to you for getting me through this. From our first meeting, I felt confident and assured to be in your safe hands and that never changed during the last 18 months. Whilst it is a great relief to have this finished I… Read more “From our first meeting, I felt confident…”

Read more testimonials

Wonderful job

I would like to thank you Lesley again for the wonderful job you and your team did for me at a very difficult time in my life.

Read more testimonials

Highly professional and meticulous in detail

Highly professional and meticulous in detail. No shortcuts or compromises involved, ensuring all eventualities were covered and underwritten with third-party expertise where appropriate.

Read more testimonials

Splendid work Marjory

Splendid work Marjory, it has been a treat to use BTO and your services.

Read more testimonials

I certainly feel like a weight has been lifted off my shoulders

Marjory, I just wanted to say thanks very much for your help right throughout the case. Lately, the ad hoc support has been invaluable and given me the confidence to keep representing myself and not feel pushed into agreeing something I’m not comfortable with. I appreciate how difficult it must be to provide support when… Read more “I certainly feel like a weight has been lifted off my shoulders”

Read more testimonials

I would recommend you to anyone

Hi Marjory and Keira, I just want to thank you both for taking me through this terrible time in my life. I have learned a lot in the past 3 years with dealing with BTO and I would recommend you to anyone as you have been very fair and honest with all parties concerned.

Read more testimonials

Thanks for all the expert guidance through a trying situation

Hi Marjory, my daughter and her son are doing great. Everything seems to have calmed down. She and her husband finished the mediation process after a couple of visits as they both felt they had to step up to the mark for their son’s sake not for personal reasons. Once again thanks for all the… Read more “Thanks for all the expert guidance through a trying situation”

Read more testimonials

All starting to come together…

Thanks Marjory, it’s all starting to come together.. thanks to you…:)

Read more testimonials

Risk assessed everything

They explained everything to me very clearly and we looked at every permutation and possible outcome and risk assessed everything.

Read more testimonials

Approachable and sensitive manner

Marjory, thank you very much for your very approachable and sensitive manner during our meetings.

Read more testimonials

Efficient and smooth service

Debbie, could I take this opportunity to thank you for the efficient and smooth service you have provided, and particularly, in our first meeting when you listened to my concerns and really helped explain things and put my mind at ease.

Read more testimonials

Guiding me through a difficult time

Lesley, I would like to take this opportunity to thank you for your professionalism. Guiding me through a difficult time, also your understanding and empathy as to my personal situation. I would not hesitate in recommending your services to others.

Read more testimonials

I still get to see my kids 3 times a week

Just wanted to say a huge thank you for your help and representation today. It’s such a relief to hear that I still get to see my kids 3 times a week. Also last but by no means least can you pass on my profound gratitude to Counsel who was a star !!!!

Read more testimonials

My recent collaborative process

Dear Marjory, I just wanted to say a huge thanks for all your help, advice and counsel throughout my recent collaborative process. You definitely made a difficult process easier for me. Thank you.

Read more testimonials

Financial knowledge and gravitas

Lesley has financial knowledge and gravitas. I think she is faultless.

Read more testimonials

Footer

Contact Us

Edinburgh
0131 222 2959
Glasgow
0141 225 4848
Email
familylaw@bto.co.uk

About Us

We are award winning family and divorce lawyers based in Edinburgh and Glasgow and covering the whole of Scotland, including cross border issues, specialising in divorce and all aspects of child and family law. Learn More

  • Email
  • LinkedIn
  • Twitter

BTO Chambers top ranked logoBTO Legal 500 ranked logo

Copyright © 2021 BTO Solicitors LLP · All Rights Reserved · Privacy Notice · Cookie Policy · Terms & Conditions · Anti-Money Laundering Policy