Balanced against the right of testamentary freedom is the Inheritance (Provision for Family and Dependants) Act 1975. This Act enables a spouse or civil partner to bring a claim against their loved one’s estate where a Will or an intestacy fails to make reasonable financial provision for them.
The Act affords greater financial protection to this category of applicant over every other as they are the only category who do not need to demonstrate that they have a maintenance need. They do, however, need to show what might be appropriate financial provision for them in the context of the marriage, whether that be a long or short marriage.
In short, what would their life look like had the parties’ relationship ended in divorce rather than death? This is commonly known by lawyers as the “divorce cross-check”, with the starting point usually being a 50/50 split between the applicant and the estate.
The Act allows the court to decide on appropriate financial provisions for all applicants. A spouse or civil partner should not expect to receive the entire estate and should not expect to better their position from the standard enjoyed within the marriage. They should also not expect their own assets and finances (especially if kept separate during the marriage) to be ignored.
Whilst the divorce cross-check is often cited as being neither a “ceiling nor a floor” (meaning this could lead to an award at more or less than the starting point of 50/50), the level of judicial discretion is high, meaning that different approaches and considerations can be taken from Judge to Judge.
Separated and/or estranged spouses and civil partners whose divorce has not been finalised by a decree absolute are also eligible to bring a claim under the Act. Importantly, they would be treated, for the purpose of the Act, as eligible within the same category and so entitled to the higher provision of a spouse/civil partner.