Can I prevent Gifts in my Will from becoming the beneficiary’s Matrimonial Asset?
You cannot guarantee that a gift or inheritance will never become the beneficiary's matrimonial asset just by writing it in your Will. The best protection is for the beneficiary to avoid mixing inherited assets into their marriage and to consider using a trust. Ultimately, the court has the final say, so getting professional legal advice is strongly recommended.
Are gifts and inheritances considered "matrimonial asset" under Singapore law?
Gifts and inheritances received by a beneficiary are generally excluded from the pool of matrimonial assets by default. However, these assets can lose their separate status and become subject to division during a divorce if the beneficiary:
- Mixes (commingles) the inheritance or gift with marital property (e.g. deposits inherited money into a joint account, uses inherited property as the family home)
- Allows the spouse to make substantial improvements to the asset during marriage
- Uses the inherited asset for the benefit of the family
Section 112(10) of the Singapore Women’s Charter states:
... "matrimonial asset" ... does not include any asset (not being a matrimonial home) that has been acquired by one party at any time by gift or inheritance and that has not been substantially improved during the marriage by the other party or by both parties to the marriage.
The court, under the Woman's Charter, has the final say on what are matrimonial assets and how they will be divided. Besides the division of matrimonial assets, the court can also order one party to pay maintenance to the wife/ex-wife, or the incapacitated husband/ex-husband.
Can a Will prevent gifts from becoming a matrimonial asset?
No, a Will cannot override the law.
Whether an asset is a matrimonial asset is determined by statute and the court, not by what is written in a Will. For example, if the beneficiary mixes inherited assets with marital property, uses them for the benefit of the family, or allows substantial improvements by the spouse, the inheritance can become a matrimonial asset.
What can you do in your Will?
1. Declare your intention and remind the beneficiary
You can include wording in your Will to clearly state your intention that the inheritance should remain separate from marital property, and reminds the beneficiary to keep it that way. This serves as guidance and reminder to your beneficiary but is not binding on the court.
Within our platform, you may include this in the Select Clauses page under "Other Instructions":
I declare that every asset of whatever nature given to any beneficiary under this Will shall be the sole and separate property of that beneficiary, and shall not form part of his/her matrimonial assets or matrimonial home. I further advise and remind each beneficiary not to commingle (mix) these inherited assets with any matrimonial assets or joint accounts, to refrain from using them as a matrimonial home, to prevent any spouse from making substantial improvements to them, and to take all necessary precautions to prevent the inheritance from becoming a matrimonial asset.
2. Allocate assets into a Trust
You can allocate assets into a Testamentary Trust or to an already established Living/Standby Trust to hold on trust for the beneficiary. This can help keep those assets outside the matrimonial pool. Assets held in a trust are kept legally distinct from the beneficiary’s own property. The trustee manages these assets according to your instructions and can withhold or delay distributions if given the necessary discretion, such as in the event of matrimonial claims.
Important: The effectiveness of a trust depends on its structure and how much control the beneficiary has over it. The court will look at the substance (who really controls or benefits from the trust), not just the legal form. Also, assets already distributed to the beneficiary fall outside the trustee's control.
If you are using our platform to configure a Testamentary Trust, enable "Full discretion over the Trust" under Trustees Powers and toggle on "Additional Trust Instructions" to key in the following:
This paragraph will take precedence over any inconsistent or conflicting instructions in this Testamentary Trust.
ADDITIONAL POWERS OF TRUSTEE
In addition to the "Powers of Trustee" stated above, I grant the Trustee(s) of this trust the following powers:
- to exercise discretion in withholding or delaying any distribution if, in their reasonable opinion, such action is necessary to safeguard the beneficiary’s interests from undue influence, creditor claims, matrimonial claims arising from divorce, bankruptcy, insolvency proceedings, or any other personal financial risks.
Precautions to be taken by the beneficiary
When you (as a beneficiary) receive any gift or inheritance, you should take care to prevent them from being treated as matrimonial assets. Practical steps include:
- Avoid using inherited money or property for the benefit of your spouse or children
- Do not use inherited property as the family home
- Do not put your spouse’s name on the asset or allow them to improve it
- Consider placing the inheritance in a living trust
- Consider a prenuptial or postnuptial agreement (the court may take these into account, though they are not automatically binding)
- Seek proper legal advice on the appropriate measures for protecting your inheritance.