8 August 2022 by

No divorce, still legally married?

What are the implications for the surviving spouse and the deceased’s family?

Two years ago, I wrote an article titled ‘what happens if your spouse dies before your divorce is complete?’ and it turns out this is happening to people even more than we realised, and so I thought it was about time for a follow up on this topic. (The link to the original article is here if you have not read it).

I am contacted regularly by clients who become aware that their estranged husband or wife has recently died. Often it is the case that a separation took place many years ago, but the two of them never formally divorced. Sometimes, a partner has passed away during the course of the divorce proceedings, but before the divorce is finalised and a decree absolute is issued by the court.

In both of these circumstances if the person that died didn’t leave a Will, and has no children, the surviving spouse will inherit the entire estate. If the deceased has children, the surviving spouse will take all the personal property and belongings of the deceased, the first £270,000 of the sole assets within the estate and half of the remaining estate. The other half will pass to the deceased’s children. Either way, the surviving spouse would also be the person entitled to take out a Grant of Representation, and deal with administering the deceased’s estate.

Nine times of ten, this outcome will not be what the deceased would have wanted and could result in others being left without reasonable financial provision from the deceased’s estate. In this situation, we can act for family members of the deceased, such as children or partners, in bringing a claim against the deceased’s estate under the Inheritance (Provision for Family and Dependants) Act 1975 (‘the Inheritance Act’).

I have also acted in cases where the deceased’s Will did not provide for their spouse (often made in contemplation of the divorce) however, they have passed away before the divorce is complete. This leaves a situation where the surviving spouse does not receive anything from the deceased’s estate, and sometimes it is necessary to bring a claim under the Inheritance Act for reasonable financial provision, particularly where the deceased was the sole owner of the home, or financially supporting the surviving spouse during their lifetime.

In an Inheritance Act claim the Court is able to award the surviving spouse more than they would have received on divorce. One of the main reasons for this is that, on divorce, the Court has to consider the financial needs of two living parties but, following the death of a spouse, that is no longer necessary.

I have expertise in bringing and defending claims of this nature on behalf of clients who find themselves in these kinds of situations, and most of the time, the claims can be settled through negotiation, or mediation, without the need for the parties to attend court, minimising the legal costs, and resolving matters a lot quicker.

For more information on this area of law, or to discuss an issue you are facing, please contact Boltburdon on 020 7288 4700 or at info@boltburdon.co.uk.

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