Can provision ever be obtained for a divorced spouse?

It is not unusual for a divorcee to expect to receive provision from the estate of their former partner.  Unfortunately, there is generally no justification for this expectation, and therefore some of the applicable rules tend to come as a shock to the surviving (former) spouse.

If the divorced partner died without leaving a valid will, the laws of intestacy will prevent the survivor from receiving anything at all.  The laws of intestacy make provision for existing relationships and not former relationships.  Further, if the former partner did make a will after the divorce, it would hardly be surprising if that will failed to provide for the survivor.  If the will was made prior to the divorce, then any terms within that will which make provision for the spouse are deemed by law to have been revoked by the divorce.  Therefore, a typical case, there can be no realistic expectation of provision.

However, applicable rules still allow a divorced person to make an inheritance claim against the estate of the former spouse, provided that the applicant has not remarried or entered into a civil partnership.

Nevertheless, careful consideration should be given before making such a claim.

Has the claim already been forbidden?

If there has been an order for financial provision in the divorce, that order may contain a stipulation that the surviving spouse is not allowed to bring an inheritance case against former partner’s estate.  You should carefully check your documents to see if this rule applies.

The risk of making things worse.

Following the death of party to a divorce, applicable rules give the court the power to vary any order for periodical payments or maintenance that may have been made.  The court certainly has the power to make things better.  For example, the court could order that such periodical payments be made in one capitalised lump sum for the surviving spouse to invest.

However, the court also has the power to revoke the maintenance or periodical payments order.  Therefore, you should consider your options carefully before embarking on a claim.

Preserving obligations

There are few reported cases where the court considered making provision for the surviving spouse following a divorce.  Of those few cases the Claimant spouse was frequently unsuccessful in the application.

Those cases where the Claimant spouse did succeed tend to have one factor in common.  Prior to the death, the deceased spouse was under an obligation to make financial provision for the surviving spouse.

You should therefore consider whether your former spouse had a duty to make provision for you during life, in circumstances where that duty ought to be transferred to the estate.

This “preservation of obligations” principle may well be the reason why a peculiar rule might also be of application.  If the deceased spouse passed away within 12 months of the divorce, and at the time of death no order had been made as to financial provision from that divorce, the court can exercise a discretion to deal with the Claimant spouse as if a decree of divorce had never been made absolute.  It is a strange rule that allows the Claimant spouse to still be treated as if they were married, and one would assume receive the kind of provision that ought to be made in the divorce proceedings, as opposed to the more modest provision for reasonable needs that is otherwise typical of such cases.

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