By Olev Edur
Apparently my daughter’s marriage isn’t working out. What happens to a couple’s property if they go through a divorce? I understand that all matrimonial assets have to be split evenly, but I’m wondering about the inheritance my deceased husband left her. Does that have to be split, too?
The rules can vary by province, but the short answer is that in your home province of British Columbia, inheritances can generally be excluded in calculating the equal division of matrimonial assets.
B.C.’s Family Law Act stipulates that partners (common law or married) must generally share equally any property (and debt) acquired during their relationship, but property they brought into the relationship is usually excluded.
“Family property,” which is subject to division, can include the family home, as well as other land, houses, or condos; RRSPs, bank accounts, and investments; and insurance policies, pensions, and business assets. Excluded property could include anything that’s not family property, such as inheritances and gifts, assets held in trust, insurance proceeds, and certain court settlements or awards. It also could include the value of what would normally be considered a family asset but was originally brought into the relationship by one of the partners. For example, if one partner owned a house that became the matrimonial home, its value up to the commencement of the relationship could be excluded, although any increase in value during the relationship would be divisible. The same would apply to investments or other assets.
The partner claiming the exclusion must demonstrate that the property qualifies. An inheritance or gift that has been comingled in the same account as family assets, for example, could lose its excluded status, so it should be kept in a separate account. An application for division must be filed within two years after the divorce order or two years after separation if the couple lived common law.
