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What happens if your spouse dies before your divorce is complete?

We have acted for clients over the years where, part way through a divorce, one spouse unexpectedly dies.

Many separated couples do not realise that, until the Court has issued a decree absolute, they are still legally married. Separation and a decree nisi are not a final divorce but the divorce proceedings cannot continue after the death.

Almost all financial agreements will be unenforceable until the issue of the decree absolute.

So where will that leave the surviving spouse?

If the deceased has not made a Will, the survivor will inherit as their spouse under the intestacy rules.

Under intestacy, if the deceased has no children, the surviving spouse (even though separated and going through a divorce), 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 in the deceased’s sole name. The other half will pass to the deceased’s children.

Either of these situations is unlikely to represent the wishes of the deceased. Anyone contemplating or going through a divorce should therefore update or make a new Will to ensure their surviving spouse does not take more of their estate than they wish them to have on death.

This could of course create a situation where a deceased spouse leaves a Will which makes no financial provision for the surviving spouse.

Equally, where there is no valid Will, a surviving spouse may not be happy with the financial provision left to them in accordance with the intestacy rules.

In either situation, the surviving spouse will be able to bring a claim against the deceased’s estate under the Inheritance (Provision for Family and Dependants) Act 1975 (‘the Inheritance Act’).

The Inheritance Act enables certain categories of people to apply to the Court, claiming that the deceased did not make reasonable financial provision for them.

Applications to the Court for a claim under the Inheritance Act by spouses and civil partners are different to applications made by other categories of people.

Whether the Will or the intestacy of the deceased makes reasonable financial provision is to be judged against what is reasonable in all of the circumstances, and not just what would be reasonable for the claimant’s maintenance.

In addition, when considering these types of claims, the Court will take into account:

  1. the age of the person bringing the claim and the duration of the marriage;
  2. the contribution made by the person bringing the claim to the welfare of the family of the deceased, including any contribution made by looking after the home or caring for the family;
  3. the provision which the applicant might reasonably have expected to receive if, on the day on which the deceased died, the marriage, instead of being terminated by death, had been terminated by divorce (but nothing requires the court to treat such provision as setting an upper or lower limit on the provision which may be made).

The wording in brackets in paragraph (c) above was added into the Inheritance Act by the Inheritance and Trustees’ Powers Act in 2014. This means the Court is able to award the survivor more than they would have had 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.

It is therefore likely a surviving spouse could be able to claim more money from their spouse’s estate following their death, than they would have received as a result of the divorce.

For more information on this area of law, please contact Emma Bryson on 020 7288 4714 or at emmabryson@boltburdon.co.uk.

Image of Emma Bryson, Bolt Burdon Solicitors, Islington

Emma Bryson

020 7288 4714
07767 232 023
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