When someone dies, it is often assumed that a former husband, wife or civil partner has no legal right to make a claim against their estate. While divorce does bring the marriage or civil partnership to an end, it does not always prevent an ex-spouse from bringing a claim after death. In England and Wales, an ex-spouse may be able to bring a claim against an estate under the Inheritance (Provision for Family and Dependants) Act 1975, particularly where financial matters were not fully resolved during the divorce. This can often happen where no clean break financial order was made, financial remedy proceedings were left unfinished, or ongoing maintenance obligations remained in place.
Divorce will usually bring automatic inheritance rights to an end. Once the divorce has been finalised:
- Gifts left to a former spouse in a Will usually fail, unless the Will clearly states otherwise.
- A former spouse will not inherit under the intestacy rules.
- The appointment of a former spouse as an executor or trustee is usually revoked by law.
However, this does not necessarily mean that all financial claims are prevented. An ex-spouse may still be able to make a claim against the estate if they can show that reasonable financial provision has not been made for them.
A former spouse may be eligible to bring a claim under the Inheritance (Provision for Family and Dependants) Act 1975 if they believe the deceased's estate has failed to make reasonable financial provision for them.
This type of claim is often relevant where financial ties between the former spouses were not properly concluded during the divorce. For example, if no financial order was made, or if maintenance payments were continuing at the time of death, there may still be grounds for a claim.
However, a former spouse cannot usually bring an Inheritance Act claim if they remarried or entered into a new civil partnership before the deceased's death. In those circumstances, the right to claim as a former spouse is lost.
Reasonable financial provision is assessed by the Court on a case-by-case basis. There is no fixed amount or automatic entitlement. Instead, the Court will look at the wider circumstances of the claim, including:
- The financial needs and resources of the former spouse.
- The size and value of the deceased's estate.
- The standard of living during the marriage.
- The length of the marriage.
- Any contributions made by the former spouse and the deceased.
- Any continuing maintenance or spousal support obligations.
- The health and care needs of the former spouse.
- The needs of other beneficiaries.
- The financial position of the beneficiaries.
The Court will also consider whether the divorce had already dealt with financial matters fairly and finally. This is why the presence, or absence, of a financial order can be very important.
One of the most common misunderstandings is that a divorce alone cuts all financial ties between former spouses. In reality, a final divorce order does not automatically deal with financial claims.
A clean break financial order is usually required to formally end financial claims between former spouses. Where a clean break order was made during the divorce, it may prevent a former spouse from bringing a claim against the estate under the Inheritance Act.
Disputes are more likely to arise where:
- No financial order was made during the divorce.
- Financial remedy proceedings were started but never concluded.
- Maintenance payments continued until the deceased's death.
- Informal financial agreements were made but never legally formalised.
This can create uncertainty for both former spouses and beneficiaries, particularly where the estate is valuable or where there are competing claims.
A claim under the Inheritance Act must usually be issued within six months from the date of the Grant of Probate.
The Court does have discretion to allow claims outside this time limit, but this is not guaranteed. Anyone considering a claim should seek legal advice as soon as possible, as delays can make the position more difficult.
If you are concerned that a former spouse may bring a claim against an estate, or you are a former spouse considering whether you have a claim, it is important to act promptly.
These claims can be complex, particularly where there was a divorce, an unfinished financial settlement or ongoing maintenance. Early legal advice can help clarify whether a claim is likely, how strong it may be, and what steps should be taken next.
At Premier Solicitors, our specialist contentious probate solicitors advise executors, beneficiaries and claimants on complex estate disputes, including Inheritance Act claims involving former spouses.
For clear advice on your position, please contact our contentious probate team at contentiousprobate@premiersolicitors.co.uk.
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