Can your ex-spouse claim against your estate after your death?

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 they had applied when you were still alive. The Court will, however, also look at any delay or financial arrangements made on separation.

Claims for “reasonable financial provision”

Under the Inheritance (Provision for Family and Dependants) Act 1975 your ex-spouse may make a claim against your estate for “reasonable financial provision”. This legislation allows individuals who were financially dependent on the deceased to apply for financial provision from the estate.

Is there a specific timeframe to make a claim against your estate?

Any claim under the 1975 Act must be brought within six months of the Grant of Probate being issued. The time to bring an action is, therefore, very strict; otherwise, the Court’s permission is required to proceed. This is a crucial deadline for any ex-spouse intending to bring a claim. 

Your inheritance position: What should you do?

It is not uncommon for husband and wife to leave “mirror Wills.” It is also not uncommon for any testamentary provision to be overlooked at the stage when the parties are going through the stressful and emotional task of divorcing.

In the circumstances, the Section 18A of the Wills Act 1837 (amended) provides that divorce impacts the inheritance in a Will.

In particular, the general rule is that the former civil partner or spouse is to be treated ‘as having died’ from the date of the final order of divorce or dissolution of the marriage. This makes any appointments or benefits to the former civil partner or spouse under the Will void, except where an express declaration states otherwise.

Whilst the law provides some protection in this regard, you should seek independent legal advice and, where necessary, execute a new Will.

How to avoid a claim against your estate after divorce

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.

Do I have a claim if my ex-spouse remarries?

If your ex-spouse remarries, then their claim for provision from your estate will fail unless remarriage 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 remarriage.

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.

Takeaway: Key steps to take

To ensure your estate is distributed according to your wishes and to minimise the risk of future disputes, consider taking the following steps:

1. Obtain a Financial Order – During the process of divorce, a Financial Order is very important. This will prevent your ex-spouse from making a claim against your estate in the future.
2. Update your Will – Review and revise your Will. This will ensure it stays in line with your current intentions and precisely excludes any unwanted beneficiaries, such as your former partner.
3. Seek expert legal advice – Speak to an expert solicitor to seek guidance and advice. Every case is different and so the advice should be tailored to your personal circumstances.

For more information please get in touch with one of our Contentious Probate solicitors by email or call on +44 (0)3333 231 580.