You may be surprised to hear that, in the event of your death, an ex-spouse is within the class of individuals who can bring a claim against your estate for “reasonable financial provision” under the Inheritance (Provision for Family and Dependants) Act 1975. This claim can be made irrespective of the circumstances of the separation. In this article, Cathryn Culverhouse looks at measures you can put in place to reduce the risk of your estate going to your ex-spouse years after your divorce has been finalised.
In some cases, if within 12 months of legal separation by law (ie. by divorce) your ex-spouse has not submitted an application for financial provision, the Court may treat you and your ex as if you were not separated at all. As a result, your ex may receive a more generous settlement from your estate than if she had applied when you were still alive. The Court will however also look at any delay or financial arrangements made on separation.
In order to avoid such a claim, it is important to ensure that your divorce settlement includes a section 15 or 15A Order. This states that the other party shall not be entitled to apply for provision out of the deceased’s estate, effectively barring your ex-spouse from making a claim. Alternatively, a ‘clean break’ order (ie. a final sum paid in settlement rather than an ongoing financial agreement) may make it more difficult for an ex-spouse to make a claim against your estate, unless they have had a change in financial circumstances.
If your ex-spouse re-marries, then their claim for provision from your estate will fail unless re-marriage occurs after your death. In such circumstances, a claim will be limited to one of maintenance from the date of your death to the date of re-marriage.
Whilst the above are helpful pointers, each claim will be considered on a case by case basis by the Courts and so it is worth taking legal advice on the specific circumstances.
For a no-obligation discussion please contact Cathryn Culverhouse.