Claiming part of an estranged spouse’s inheritance

4 October, 2018

If a couple separate but do not divorce, their finances continue to be linked until either a divorce or separation agreement (which divides finances in a binding agreement) is finalised. Even finances built up after separation can be included.

While delaying a formal divorce may seem the easier path, it can lead to adverse financial consequences if divorce takes place at a later date.

In this article, we consider what happens if one of the spouses dies after separation but before divorce.

The first point to make is that if you are legally married to someone at the time of your death and have no Will (this is known as being intestate), your spouse will inherit a large portion of your estate under the intestacy rules.

It is therefore important on separation to prepare a Will if you have not done so. Of course, many spouses will have made Wills leaving their assets to each other. In those cases, on separation, you will need to amend your Will because if you were to die without having done so, that Will remains effective.

Another issue is that the surviving spouse could seek to challenge the financial impact of any Will or the intestacy rules under the terms of the Inheritance (Provision for Family and Dependents) Act 1975. The 1975 Act allows certain categories of people to bring a claim for a share or a larger share of someone’s estate. One of the categories of eligible claimants is spouses.

Whilst each case under the 1975 Act turns on its own facts, the Court will consider the financial resources and needs of the applicant. An additional factor that the Court will consider for spouses is the provision they would have received on divorce. However, this is only one factor and does not set a limit on any claim.

Therefore, if you die after separation but before divorce, your spouse could pursue a claim under the 1975 Act and could be awarded more than he or she would receive under divorce at the expense of your chosen beneficiaries.

Whilst a former (divorced) spouse who has not remarried can bring a claim under the 1975 Act, such claims are generally more restricted than claims by current spouses.