After a divorce, many people expect that former spouses no longer have any claim against each other’s finances or estate. However, in some situations, an ex-spouse may still be able to bring a claim after death.
Whether a claim can be made will depend on factors such as any financial settlement reached during the divorce and the circumstances surrounding the estate.
In this article, Dispute Resolution Associate, Olivia Parkinson covers:
- If an ex-spouse can claim inheritance
- What if an ex-spouse dies and you’re still named in the will
- What happens if divorced couples reconcile
Can an ex-spouse claim inheritance after death?
Yes, in certain circumstances. Financial settlements on divorce often contain a clause which prevents ex-spouses from making a claim against the other’s estate upon their death. So it is important to check whether this was done or not.
You can read our full article on contesting wills here.
What if no clause exists?
If no exclusion exists, an ex-spouse has a right to bring a claim against the deceased’s estate for ‘reasonable financial provision’ under the Inheritance (Provision for Family and Dependents) Act 1975 (‘the Inheritance Act’).
Some factors to consider when determining whether a claim can be brought:
- The ex-spouse cannot bring a claim if they have re-married or formed a new civil partnership.
- There can be no formal financial settlement agreed between the parties or a clean break achieved when they divorced.
- Claims must be brought within 6 months of the grant of probate being issued otherwise court permission will be required.
What happens when your ex-husband dies?
If you have not remarried or entered into a civil partnership, then you should consider whether you reached a formal financial settlement agreement or order at the time you and your ex-husband divorced.
If not, there are still outstanding financial matters arising from the breakdown of your marriage which need to be resolved and you could make a claim under the Inheritance Act.
If you were still receiving maintenance from your ex-husband and this was due to continue then you would be considered as a dependant and would have a claim under the Inheritance Act.
The court will consider factors such as:
- Each of your financial resources and financial needs and those that you may have in the future
- The financial resources and needs that any other beneficiary of the estate may have
- The size and nature of the estate
- Any physical or mental disability that either of you may have
You can find out more about financial settlement agreements in our dedicated article here.
What if my ex-spouse dies and I am still named in their will?
If your ex-spouse has not changed the terms of their will after your divorce, you will no longer be entitled to inherit what they had previously left you in their will and any clause will be treated as ‘void’.
This will mean that any gift to you will fall into the deceased’s residuary estate and you will no longer be entitled to it.
Does my late husband’s ex-wife have a claim on pensions left to me?
Pensions generally do not form part of a person’s estate and will therefore often not be provided for within the will. In these scenarios, pension providers will look at the nominated beneficiary of the pension for this to be distributed.
However, there can be certain situations where pensions can fall into the estate and if there was no financial settlement entered into at the time of the divorce, there may still be outstanding financial matters arising from the divorce that need to be considered by the Court.
It is important you seek legal advice at the earliest possible stage to seek advice as what can and cannot be claimed.
What happens if a divorced couple reconcile?
If a divorced couple decide to reconcile and move back in together, they may be able to make a claim against the other’s estate. In the case of Chekov v Fryer, a married couple reached financial settlement in their divorce and both agreed that neither would be entitled to claim against the other’s estate.
However, when the husband later died, his ex-wife had moved back in with him, and she brought a claim under the Inheritance Act. She did so on the basis that she was residing with her ex-husband for the two years immediately prior to his death and they were living as though they were a married couple again.
For the purpose of the Inheritance Act this rendered her entitled to receive ‘reasonable financial provision’ from his estate in her capacity as a cohabitee, rather than as an ex-wife.
Can a will be contested?
Disputes involving estates can arise for a number of reasons, whether that is concerns about inheritance, financial provision, or the validity of a will itself.
If you are also dealing with questions around whether a will can be challenged, read our dedicated article on contesting wills here.
Specialist Contested Wills Solicitors
If you believe a Will isn’t valid it’s important that you get clear advice on what to do next. Our specialist solicitors have extensive experience in contesting Wills and are able to offer tailored advice to your specific situation.
We offer a free initial chat to all new clients, you can get in touch with a member of the team on 01202 499255 or by filling out the form.
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