Can you submit inheritance claims after your divorce is finalised? What if you rekindle the relationship and start living together again?
Can inheritance claims be debarred on divorce?
If you have gone through divorce proceedings which included the finalising of finances in a document known as a Consent Order, you may well be familiar with a standard clause often included the Consent Order which debars either party from making a claim against their ex-spouse’s estate upon death. Such claims are referred to as claims under the Inheritance (Provision for Family & Dependants) Act 1975 (“the Inheritance Act”).
It is important to ensure that the appropriate wording is included in your Consent Order on divorce to protect your estate from claims by your ex-spouse. If you are unsure whether your Consent Order provides such protection, it is strongly advisable for you to seek specialist legal advice as soon as possible.
What if one party dies before the divorce is finalised?
If the divorce process has commenced but Decree Absolute/Final Order (the document effecting the final dissolution of the marriage) has not been obtained, or a Consent Order has not been entered into, on the death of one party, a claim under the Inheritance Act will be possible and potentially dangerous to the estate of the deceased party.
If finances have not been finalised and confirmed in a Consent Order, then a claim under the Inheritance Act will normally be permitted to resolve the financial position.
What if the relationship rekindles, but we don’t remarry?
What if you have divorced your former spouse, the clause excluding Inheritance Act claims is deemed sufficient to prevent a claim, but you subsequently rekindle your relationship and start to cohabit again? Can you make a claim against their estate on death (and vice versa)? The short answer is yes.
A cohabitee is also an eligible applicant under the Inheritance Act (see our article: Inheritance Act claims by cohabitees). You may therefore have finalised your divorce, entered into a Consent Order to protect yourself and your estate, and made a Will, but the reality is your estate may still be vulnerable to an Inheritance Act claim if you begin cohabiting with your ex-spouse again.
In order to sufficiently protect yourself against the various claims available to cohabitees including those under the Inheritance Act, it is vital to put in place a document known as a Cohabitation Agreement or Companionship Agreement to confirm what will happen to your property, assets and estate on death. To find more out about these agreements visit our Cohabitation page for more information.
What if I begin a new relationship?
If you begin a new relationship post-divorce, or move in with a companion for company, you absolutely must put in place a Cohabitation or Companionship Agreement to protect yourself. A companion who may have been living in your property (even if not as a partner) may pursue an Inheritance Act claim against your estate, or cause significant issues if your property needs to be sold in the future, so it is vital to ensure these issues are dealt with early on.
For other considerations for a post-divorce relationship, see this article.
When to seek legal advice for inheritance claims after divorce?
Inheritance Act claims are dangerous and have a strict limitation period in which they can be brought. Whether you are considering pursuing an Inheritance Act claim or wish to protect your estate against one, seek legal advice as soon as possible.