There are cases when one of the parties in a marriage dies before or during divorce proceedings. Until a decree absolute has been issued, legal divorce has not taken place, and the marriage is still intact.
However, while the law may take this simplistic view in theory, the lived experience is a potentially complex and controversial situation with several possible outcomes.
Let’s explore what could happen if a person dies before they have officially divorced from their spouse.
What happens if a separated spouse dies without divorce, and they don’t have a valid will?
In the event that a separated spouse dies before a divorce has been finalised with a decree absolute, intestacy rules will apply.
In legal terms the couple were still married, so if the deceased spouse has no children, the surviving spouse will inherit everything.
In cases where the deceased had children, the surviving spouse will inherit the first £322,000 of the estate, as well as all personal property belonging to the deceased. If the estate is worth more than £322,000, the surviving spouse will receive half of what is left over with the other half being given to the children of the deceased.
What happens if a separated spouse dies without divorce, but they have a valid will?
If a separated spouse dies without a finalised divorce but they have a valid will, their estate will (in most cases) be distributed in accordance with their wishes.
If the will was made after the couple separated, the deceased may have decided to leave nothing or very little to the surviving spouse. Any financial agreements made during the divorce process, but prior to a decree absolute being issued, would be unenforceable. This could obviously have serious financial consequences for the surviving spouse.
In some cases, the surviving spouse may be able to make a financial claim against the deceased’s estate under the deceased’s estate under the Inheritance (Provision for Family and Dependants) Act 1975, also known as ‘the Inheritance Act’. Should the court determine that the deceases did not make reasonable financial provisions for their spouse.
To determine this, they may consider:
- The duration of the marriage
- Age of the surviving spouse
- How much the surviving spouse contributed to the welfare of the deceased and their family or property
- The financial support the surviving spouse might have expected to receive if the marriage had been terminated by divorce, rather than death, on the day their separated spouse died.
Unlike the financial settlement of a divorce, the court only needs to consider the financial needs of one party. Depending on the individual circumstances of the case, the surviving spouse may be awarded more financial support than they would have had if the marriage had ended in divorce with a financial settlement.
Close relatives or other beneficiaries may attempt to dispute the surviving spouse’s claim, which is why it is vital to seek legal advice.
Updating your will after divorce
When a divorce has been finalised, it is important to make a will or to update an existing one.
Why is this so important? Under UK law, divorce can invalidate provisions in your will that relate to your ex-spouse. If you die with an out-of-date will, your assets may be allocated in a way that doesn’t align with your wishes or even be decided based on the rules of intestacy.
Common complications can include ex-spouses being listed as the main beneficiary or the executor, or guardianship arrangements failing to represent the family’s current circumstances.
During the revision process you may choose to amend issues relating to:
- Beneficiaries
- Guardianship provisions
- The management of joint assets and trusts, e.g., property, family trusts, business interests, investment portfolios.
Our team of specialist divorce solicitors will be able to explain any tax implications that might impact your beneficiaries in the future. This will help you make the right decisions for your family‘s future when dividing, liquidating or transferring jointly owned assets in your will.
Legal advice from experts in wills and divorce
At Osbourne Pinner, we understand the importance of providing not just legal advice, but also guidance and clarity during the most challenging periods of your life.
Navigating the complex topics of both wills and divorce can be a stressful and emotional time, but our divorce and family law team are ready to help.
Our team of expert solicitors who are experienced in delivering bespoke advice on wills and divorce in the UK. Whether you are looking for support in drafting and updating your own will after a divorce, wanting to protect your assets during or after a divorce, or considering the best way to protect your finances and family in the future, we can help.
If you’d like a free consultation, simply fill out the form below, call 0203 983 5080 or email us at [email protected] .
