- December 2, 2014
- By Clare Kelly
- 0 comments
My former spouse has died. Our divorce was not finalised. What can I do now?
I am currently acting for a second wife whose husband had made a will leaving everything to her. After his death, she received a letter from his first wife’s solicitors saying that they wanted to finalise financial proceedings arising from their divorce many years later. My client came for advice on whether this could be done.
On divorcing, my client’s husband and his first wife had agreed a financial settlement between them but had not got a Court order confirming the terms. The first wife’s solicitors argued that they did not consider the agreement to be in full and final settlement of the financial claims arising on divorce. The estate is now worth substantially more than it was at the time of their divorce.
Divorce proceedings cannot be continued after the death of one of the parties to the divorce. If a decree absolute has not been obtained, then you remain married (which may affect who has the right to take a grant, or who inherits the estate). More often the divorce itself has been finished, but the financial claims have not.
A former spouse who has not remarried may be able to bring a claim under the Inheritance (Provision for Family and Dependants) Act 1975 as amended by the Inheritance and Trustees Powers Act 2014, for reasonable financial provision from the estate. A former spouse who was receiving maintenance from the estate (for example a monthly payment) may also be able to bring a claim. It is possible to contract out of Inheritance Act claims – this will usually be covered in the Order finalising the financial claims – so you need to check any order carefully before beginning a claim.
When a former spouse brings a claim the Court can consider what would have happened had the parties divorced (although this will not be done where the financial claims have been properly dealt with by the Court already). This is called the ‘divorce fiction’. This normally starts with an equal division of assets, but can be affected by the length of the relationship, the contribution to the marriage by each party (particularly if there were substantial assets brought to the marriage by one party), the situation since the relationship ended (particularly if this was a long time before the death) and the financial needs and resources of the spouse, other parties to the claim and other beneficiaries of the estate. The 2014 Act specifically provides that the provision which might be made on divorce should not act as an upper or lower limit on any claim. The amount which the Court will award is based on different factors depending on whether you are a spouse or a former spouse.
If you have divorced but not completed your financial claims the solution may be an Inheritance Act claim. If the deceased had children, they may also want to bring claims (particularly if they are minors). If you are separated but not divorced, you should consider making a will or amending any will you have in order to ensure that your ex does not automatically inherit your estate.