Inheritance Act Claims For The Not Quite Divorced Spouse
The Inheritance (Provision for Family and Dependents) Act 1975 (“the Inheritance Act”) allows a spouse to claim against the estate where a Will has not made reasonable financial provision for them, by either cutting them out completely or leaving them too little.
A spouse is a special category of applicant under the Inheritance Act which requires special considerations. The courts generally consider that spouses should have reasonable finance provision made for them so it is quite difficult to exercise testamentary freedom against them.
What is a spouse?
This is self-explanatory but it is important to note it will include anyone who has separated but not obtained a formal divorce by way of a decree absolute.
How does separation affect the status of a spouse?
Unless there has been formal separation by divorce (decree absolute) or annulment of a marriage, then it does not matter whether the parties have agreed or a court has ordered, that there should be financial provision and no further claims.
This can create the strange situation where during financial proceedings one party dies and the other party can now make a better claim for financial provision in death than in marriage.
The reason was explained by the courts in the case of P v G, P and P (Family Provision: Relevance of divorce provision)(2006):
“I am struck by the force of the repeated observations in the decided authorities by the difference between divorce where there are two surviving spouses for whom to make provision and death where there is only one. It seems probable that this difference will not infrequently be reflected in greater provision being made under the 1975 Act than would have been made on divorce.”
It should also be noted that where a decree for divorce or nullity of marriage has been made absolute but no application for financial provision under s23 Matrimonial Causes Act 1973 or a property adjustment order under s24 has been made or determined, and one party then dies, the court has the power to treat the decree of divorce or nullity of marriage as not having been made absolute.
What considerations does a Court take into account for a spouse?
The questions to be asked are:
- Has reasonable financial provision been made for the spouse?
- If not, then what reasonable financial provision should now be made
S1(2)(a) of the Inheritance Act makes clear that ‘reasonable financial provision’ for a spouse means such reasonable financial provision as it would be reasonable in all the circumstances of the case, whether or not that provision is required for their maintenance.
In deciding the questions above, the Court will have to have regard to all of the circumstances including the particular matters set out at sections 3(1) which apply to all applicants:
- the financial resources and financial needs which the applicant has or is likely to have in the foreseeable future;
- the financial resources and financial needs which any other applicant for an order under section 2 of this Act has or is likely to have in the foreseeable future;
- the financial resources and financial needs which any beneficiary of the estate of the deceased has or is likely to have in the foreseeable future;
- any obligations and responsibilities which the deceased had towards any applicant for an order under the said section 2 or towards any beneficiary of the estate of the deceased;
- the size and nature of the net estate of the deceased;
- any physical or mental disability of any applicant for an order under the said section 2 or any beneficiary of the estate of the deceased;
- any other matter, including the conduct of the applicant or any other person, which in the circumstances of the case the court may consider relevant.
In addition for a spousal claim, the court also has to consider the following additional matters:
- The age of the applicant and the duration of the marriage;
- The contribution made by the applicant to the welfare of the family of the deceased, including any contribution made by looking after the home or caring for the family.
The court will have regard to what an applicant might have received if the marriage had been terminated by a decree of divorce rather than death. This is known as the ‘deemed divorce’ test.
However, it should be stressed, that this is only one of the many factors a court will need to take into account where balancing conflicting interests on the estate.
It is also important to bear in mind the courts have said that this ‘divorce cross check’ does not impose an upper or lower limit to what provision can be made.
A cautionary tale
If you are engaged in financial proceedings and have agreed settlement or the same has been determined by a court, do not forgot that you still need a decree absolute to get over the line.
Also it would be advisory to change your Will to make a similar award to your soon to be ex-spouse rather than to cut them out completely before completion of the formal divorce, to avoid a successful claim against your estate after your demise so your intended beneficiaries are appropriately protected.
These are not simple matters and early advice should be sought for preventative measures to safeguard your assets as well as your loved ones.