The overlap between divorce and inheritance claims

Divorce or dissolution of civil partnerships and inheritance disputes are often viewed as entirely separate areas of law. In practice, however, there can be significant overlap between family law and contentious probate, particularly where a relationship has broken down before one party dies, financial claims remain unresolved, or a former spouse seeks provision from an estate.

Inheritance disputes

In cases involving a claim against an estate by a spouse or a former spouse (usually only if there were no final financial orders made with the divorce), we commonly look at the Inheritance (Provision for Family and Dependants) Act 1975 (“the Inheritance Act”).

The Inheritance Act allows certain individuals to bring claims against a deceased person’s estate if reasonable financial provision has not been made for them under the will or the rules of intestacy. Those eligible to apply may include a surviving spouse, a former spouse who has not remarried, children and certain dependants.

The legislation therefore raises a number of important questions for individuals who are divorcing, negotiating financial settlements, or have recently concluded divorce proceedings.

Financial remedy proceedings

If people are getting divorced and seek an order to finalise the financial matters between them, their application comes under the Matrimonial Causes Act 1973. For a dissolution of a civil partnership similar provisions arise under the Civil Partnership Act 2004. In this situation, the Court considers claims between a married/civil partnered couple by looking at their backdrop of their assets, liabilities and incomes to consider how those things should be shared with an eye upon their respective financial needs too.

Generally, the aim is to reach a financial settlement that allows both parties to achieve financial independence from one another either immediately, or after a reasonable period of adjustment (usually where one person needs additional income to achieve that financial independence).

The relationship between the two

The intersection between divorce proceedings and inheritance claims is often overlooked, however, it is not uncommon for one party to die before divorce or financial remedy proceedings have concluded. In those circumstances, the legal consequences can be surprising. The rights and claims that the family courts might otherwise have resolved can instead give rise to claims against the deceased’s estate.

Can I bring a claim against my spouse’s estate if we were in the process of divorcing when my spouse died?

In short, yes – death during divorce proceedings does not put an end to matters. Whilst death will most likely bring any claims under the Matrimonial Causes Act 1973 to an end, the surviving spouse may instead bring a claim under the Inheritance Act if they have not been left reasonable financial provision in the deceased’s will or under the intestacy rules. This can result in the estate and beneficiaries suddenly finding themselves defending litigation they thought divorce proceedings would resolve.

Until you are legally divorced, you are treated as a spouse for the purpose of the Inheritance Act. Spouses are generally treated more favourably than other claimants under the Inheritance Act, as a Court will consider what is reasonable for the claimant to receive in all of the circumstances as opposed to considering what is required for the claimant’s maintenance.

The Court will also consider the “deemed divorce test” and will look at what the claimant would have received had the marriage ended in divorce as opposed to death. This does not mean that the court simply conducts a divorce exercise after death. Rather, the court uses the likely outcome of divorce proceedings as a benchmark when assessing what provision should be made from the estate. Factors such as the parties’ financial resources, housing needs, ages, health and standard of living may therefore be relevant.

What happens if my ex-spouse dies after we have divorced?

A former spouse who has not remarried may be eligible to bring a claim where their ex-spouse dies within 12 months of the final order, and no financial order has been made resolving the parties’ financial claims. Where there is a final order, but no financial order, the Court may treat the claimant as though the final order was not made. In effect, this can allow the former spouse to be treated as a surviving spouse for the purposes of an Inheritance Act claim, potentially giving them access to the more generous standard of financial provision that applies to spouses.

The position will depend on whether a financial remedy order was made during the divorce and, if so, the terms of that order. Many financial orders include “clean break” provisions designed to bring an end to future financial claims between the parties, including claims against each other’s estates. Where such provisions are in place, they can significantly affect, or entirely prevent, a former spouse’s ability to pursue a claim following death.

For that reason, it is crucial for both divorcing couples and personal representatives administering an estate to carefully review any financial orders made during the divorce. The existence, timing and wording of those orders can have a significant impact on whether a former spouse retains the right to seek financial provision from the estate.

How can I avoid an inheritance dispute following my divorce?

To prevent your ex-spouse from bringing a claim under the Inheritance Act following a divorce, it is important that you ensure that your financial order includes a clean break clause so far as possible. This generally prevents your ex-spouse from being able to bring any future claim relating to the finances of the divorce.

There are some cases where financial support is ongoing post divorce. This may lead to a need for provision from the estate should the paying ex spouse die before the end of the term and other provisions, such as life assurance/insurance, do not make adequate provision for the surviving financially dependent ex-spouse.

Is an ex-spouse still entitled to any provision made for them in a will prior to a divorce?

Following a divorce, former spouses are generally treated for succession purposes as though they had predeceased one another. This means that, when administering an estate, any gift or provision made to a former spouse under a will usually fails unless the will expressly provides otherwise.

For example, if a husband’s will leaves a wife a legacy of £100,000, but the parties subsequently divorce and the husband later dies without updating his will, the law will generally treat the gift as though the wife had died before her husband. As a result, the £100,000 legacy will not take effect and will instead fall into the residue of the husband’s estate, to be distributed in accordance with the remaining provisions of his will.

Will my ex-spouse be able to claim any of my inheritance during divorce proceedings?

This is not a definite yes or no answer. It always depends on a variety of factors including when the inheritance was received (i.e. during the marriage/partnership or very close to the end, after separation); whether it was used for the joint benefit and how it was used; whether it was never touched at all and, perhaps most importantly, whether there is a need to apply this inheritance to meet the financial needs of both people if the other clearly-matrimonial assets are not sufficient.

Contact us

If you have any concerns about an inheritance claim which you or a family member has set up, please do not hesitate to contact us.