Divorce and the Inheritance Act

We often hear from clients who have made the difficult decision to divorce and are then given the news that their spouse has passed away before any divorce and financial settlement has been finalised regarding their marriage.

Aside from the emotional difficulties in this situation of contentious probate, many will also be extremely worried about how they will manage financially.

When involved in divorce proceedings, the spouse or civil partner will usually have updated their Will to exclude their partner, leaving them without any provision in the Will and unable to proceed with the divorce.

If they have been seeking to secure their financial position in the divorce by relying on a division of assets, the death can leave clients in extremely difficult financial circumstances.

Other categories of applicants, such as children or anyone maintained by the Deceased immediately before their death, will have their claim assessed based on their need for maintenance from the estate.

In deciding what, if any, settlement to award in all cases, the court considers several factors listed in the Act as follows:

 1. The financial resources and needs of the applicant;

 2. The financial resources and needs of any other applicant;

 3. The financial resources and needs of the beneficiaries;

 4. Any obligations and responsibilities of the Deceased towards any applicant and any beneficiary;

 5. The size and nature of the estate of the Deceased;

 6. Any physical or mental disability of any applicant or beneficiary;

 7. Any other matter, including conduct, which the court may consider relevant.

However, in the case of a claim by a surviving spouse or civil partner, the court will also consider the following:

• The age of the applicant and the length of the marriage or civil partnership;
• The contribution made by the applicant to the welfare of the family, including any contribution made by caring for the family or looking after the home.
• The provision the applicant might reasonably have expected to receive if, on the day the Deceased died, the marriage was terminated by divorce rather than death.