What happens if your husband or wife dies before your divorce is finalised?

Occasionally, one party to a marriage passes away unexpectedly, whilst in the process of divorcing their spouse.

Until the court has issued a final divorce order (previously, a decree absolute), couples are still legally married. This is the case, even if they have been separated for a long time, or the court has issued a conditional divorce order (previously, a decree nisi).

Usually, financial agreements reached during the divorce process only become enforceable on the issue of a final divorce order (provided they have been formalised in a court order, by consent or made by a judge after a final hearing).

This could have considerable financial consequences for the surviving spouse, particularly if the deceased spouse made a new Will before they died and in the midst of their separation, which is not at all uncommon.

If the deceased does not have a valid Will, the survivor will inherit as their spouse under the intestacy rules. If the deceased had no children, the surviving spouse will inherit the entire estate.

If, however, the deceased did have children, depending on the date of death, the surviving spouse will take all the personal property and belongings of the deceased, the first £322,000 of the sole assets and half of the remaining estate in the deceased’s sole name. The other half will pass to the deceased’s children.

The surviving spouse may feel the financial provision they receive in accordance with the intestacy rules is insufficient.

Similarly, the deceased may have made a new Will before they died, leaving little or no part of their estate to their spouse, in light of the pending divorce.

The surviving spouse could therefore find themself in a situation where they are not financially provided for at all, because the divorce was incomplete, and they do not benefit from the deceased’s estate.

The consequences of this can be even more worrying where the deceased had been financially maintaining their spouse, or the marital home was in the deceased’s sole name.

In either of these situations, the surviving spouse will be able to bring a claim against the deceased’s estate under the Inheritance (Provision for Family and Dependants) Act 1975 (‘the Inheritance Act’).

The Inheritance Act enables certain categories of people to apply to the court, on the basis the deceased did not make reasonable financial provision for them.

When deciding these types of claims, the court will consider among other things:

1. the age of the person bringing the claim and the duration of the marriage;
2. the contribution made by the person bringing the claim to the welfare of the family of the deceased, including any contribution made by looking after the home or caring for the family;
3. the provision which the applicant might reasonably have expected to receive if, on the day the deceased died, the marriage, instead of being terminated by death, had been terminated by divorce (but nothing requires the court to treat such provision as setting an upper or lower limit on the provision which may be made).

This means the court can award the survivor more than they would have received on divorce from their spouse. In divorce cases, the court has to consider the financial needs of two living persons but, following the death of one spouse, that is no longer the case, and only the survivor has a financial need.

The deceased’s close family members or beneficiaries of their Will are likely to defend the claim, therefore it is important to take expert legal advice at the earliest opportunity.

At Michelmores we have considerable experience in bringing and defending Inheritance Act claims. If you have any queries, please do get in touch with Emma Bryson or another member of our Disputed Wills & Estates team.