Divorce and the Inheritance Act

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We often hear from clients who have made the difficult decision to divorce and are then given the news that their spouse has passed away before any divorce and financial settlement has been finalised regarding their marriage.

Aside from the emotional difficulties in this situation of contentious probate, many will also be extremely worried about how they will manage financially.

When involved in divorce proceedings, the spouse or civil partner will usually have updated their Will to exclude their partner, leaving them without any provision in the Will and unable to proceed with the divorce.

If they have been seeking to secure their financial position in the divorce by relying on a division of assets, the death can leave clients in extremely difficult financial circumstances.

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Divorce and the Inheritance Act

Inheritance (Provision for Family and Dependants) Act 1975

In these cases, clients can find comfort in the general principles set out in the Inheritance (Provision for Family and Dependants) Act 1975.

Someone who has contemplated or even started divorce proceedings would still be classed as a spouse or civil partner under the Act and entitled to make a claim on their late husband, wife or civil partner’s estate.

These cases are complex, but claimants in this category are usually seen as having the ‘strongest’ claim because they are entitled to a reasonable provision in all circumstances, whether or not it is required for maintenance.

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Inheritance Provision for Family and Dependants Act 1975

Court considerations

Other categories of applicants, such as children or anyone maintained by the Deceased immediately before their death, will have their claim assessed based on their need for maintenance from the estate.

In deciding what, if any, settlement to award in all cases, the court considers several factors listed in the Act as follows:

 1. The financial resources and needs of the applicant;

 2. The financial resources and needs of any other applicant;

 3. The financial resources and needs of the beneficiaries;

 4. Any obligations and responsibilities of the Deceased towards any applicant and any beneficiary;

 5. The size and nature of the estate of the Deceased;

 6. Any physical or mental disability of any applicant or beneficiary;

 7. Any other matter, including conduct, which the court may consider relevant.

However, in the case of a claim by a surviving spouse or civil partner, the court will also consider the following:

  • The age of the applicant and the length of the marriage or civil partnership;
  • The contribution made by the applicant to the welfare of the family, including any contribution made by caring for the family or looking after the home.
  • The provision the applicant might reasonably have expected to receive if, on the day the Deceased died, the marriage was terminated by divorce rather than death. 

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Court considerations

Divorce cross-check

This last point is often referred to as the “divorce cross-check” and means that generally, a surviving spouse or civil partner should not be worse off if the marriage ended when their partner died rather than on divorce.

The court would still have wide discretion in what order to make, and the fictional divorce is just one factor to consider. It is something that is usually given significant weight, and so this can reassure anyone who finds themselves in this difficult situation.

It is vital that anyone considering a claim act quickly to protect their position. If you have any queries or want to make a claim, please get in touch with us for an initial consultation so we can assess your case and advise you on what action you can take.

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Divorce cross check

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If you need expert advice regarding any matter related to divorce, contentious probate, or the Inheritance Act, the lawyers on Myerson's Contentious Probate Team can help. You can get in touch via:

0161 941 4000