A spouse may make a claim against their deceased spouse’s estate under the Inheritance (Provision for Family and Dependants) Act 1975 (the “1975 Act”) because their Will or the intestacy rules (where there is no Will) fails to make reasonable financial provision for them. 

The Court will conduct a “divorce cross-check” exercise as part of the claim. This means that they will have regard to the provision (i.e. award) that the spouse might have reasonably expected to receive had the marriage ended in divorce, rather than one of the parties having died. The Court recognises that different circumstances surround the termination of a marriage by death rather than divorce. The provision that is appropriate for one of those situations will not necessarily be appropriate for the other. For example, there may be a reduced need for provision from the estate where a life insurance policy has paid out on death. 

There is no “upper” or “lower” limit on the financial provision a spouse may expect to receive under the Inheritance 1975 Act. However, there is often an expectation that a surviving spouse might receive around 50% of the marital assets (i.e. both the claimant’s assets and the net estate). Equality will generally apply unless there is a “good reason” to depart from this proportion. Many different factors can constitute a “good reason”, including a Prenuptial Agreement. 

What is a Prenuptial Agreement? 

A Prenuptial Agreement is an agreement made between a couple before their marriage takes place, which sets out how they wish their assets to be divided if they divorce. An important point to note is that they are not legally binding in England and Wales. Although not legally binding, they can still be upheld by the Court if they have been drafted properly and fairly and do not discriminate against any children. 

Prenuptial Agreements and the Inheritance (Provision for Family and Dependants) Act 1975

Effect on Death 

There is a misconception that Prenuptial Agreements prevent claims from being brought following a spouse’s death, but this is not always the case in 1975 Act claims. Instead, Prenuptial Agreements are one of many considerations the Court takes into account when considering whether the Will or intestacy rules have failed to make reasonable financial provisions for a surviving spouse. 

The question of whether reasonable financial provision has been made is not subjective but objective. Therefore, the wishes of one or both of the parties as to the distribution of the estate, whether expressed in a Will or a Prenuptial Agreement, are not always determinative.

The weight given to Prenuptial Agreements is decided on a case-by-case basis, with the Court generally considering the circumstances in which the agreement was entered into. Suppose the claimant can evidence that there was any duress (i.e. force or bullying), fraud, or misrepresentation (e.g. something untrue that was said to induce a person to enter into an agreement) involved in their signing of the Prenuptial Agreement. In that case, it may be entirely unenforceable and not given any weight at all. 

In contrast, there are cases where Prenuptial Agreements are given significant consideration. This is generally where they are deemed to be fair, entered into freely, and both parties have an understanding of their implications. In these cases, the Court may find that reasonable financial provision is what the parties set out in the agreement. 

Here to help 

The impact of a Prenuptial Agreement in a 1975 Act claim can be uncertain. If you have any questions or would like more information, you can contact our Contentious Probate team below. 

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