Can an ex-spouse claim against an estate?

Michelle Hayter is a partner and head of Frettens' specialist dispute resolution team. 

A specialist in dealing with contentious wills and probate, she is recommended in the Legal 500, an independent guide to the legal sector, for her work in the area.

Here, she answers some common questions around a difficult topic. Can ex-spouses claim against estates?  

Can Ex-spouses Claim Against Estates?

Yes, if the ex-spouse has not remarried or formed a new civil partnership, and the parties have failed to reach a formal financial settlement order or achieved a clean break, an ex-spouse could make a claim against the Deceased’s estate for reasonable financial provision pursuant to the Inheritance (Provision for Family and Dependants) Act 1975. 

Such a claim would have to be brought within 6 months of the Grant of Probate being issued.  A financial settlement will usually contain a clause preventing future claims against the estate of the other party, therefore if such settlement has not been achieved it is likely they can claim.

Michelle has written about the process for contesting a will in an article you can read here.

Related Article: Can I claim against an estate if the deceased owes me money?

Can a divorced spouse inherit UK?

No, a divorced spouse cannot automatically inherit under the terms of the Will. 

Whilst the Will remains valid, any gift to an ex-spouse would take effect as if that ex-spouse had died and their inheritance will fall to any remainder beneficiary or back into residue.

Related: What happens to a Will after divorce?

Can an ex-wife claim after death?

Yes. An ex-spouse can claim against an estate if:

• they have not re-married or formed a civil partnership 
• the parties have failed to reach a formal financial settlement order or achieved a clean break in their divorce
• the claim is brought within 6 months of the Grant of Probate being issued

Find out more about ex-wife claims here.

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 (Provision for Family and Dependants) Act 1975.  

Furthermore, 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 (Provision for Family and Dependants) Act 1975. 

Does my late husband’s ex-wife have a claim on pensions left to me?

Potentially, if she has not remarried or entered into a civil partnership and no formal financial settlement agreement or order was reached with your late husband at the time of their divorce then there is likely to be outstanding financial matters arising from the breakdown of their marriage which need to be resolved. 

She could make a claim under the Inheritance (Provision for Family and Dependants) Act 1975 and the court will consider her circumstances together with yours and your competing needs.

Recommended solicitors for Contesting a Will

We are one of a small number of firms in the area with specialist solicitors who are experienced in handling the complexities of disputes. We can help you bring or defend a claim over a will or an inheritance.

Frettens are recommended in the Legal 500 for contentious trusts and probate

“Frettens LLP advises on the enforcement of trusts created under wills, defending claims under the Inheritance Act, and assists beneficiaries and executors with contentious matters regarding the assertion of undue influence on elderly and vulnerable clients with insufficient mental capacity. The firm is also experienced in handling professional negligence claims against solicitors advising on the drafting of wills.” Legal 500 Guide, 2019.

Michelle Hayter is also personally recommended in the independent guide for their expertise in this area.

Free legal advice for contesting a will

We offer a free initial meeting for all clients. Considering whether to contest a will is a difficult decision based on a very complex area of law. Our solicitors are friendly and approachable, and able to explain complex legal issues in clear, easy-to-understand language.

If you’d like to speak to someone, either over the phone or at our bright, modern offices, please don’t hesitate to give us a call on 01425 208315.