For anyone who has gone through divorce proceedings you may be familiar with the standard clause often included in divorce orders excluding either party from making a claim against their ex-spouse’s Estate upon death under the Inheritance (Provision for Family & Dependants) Act 1975 (“the 1975 Act”).

If this clause is included in the divorce order it can prevent a former spouse from pursuing a 1975 Act claim against the other’s Estate following a decree absolute. The order will only be successful at preventing a claim if the appropriate wording has been included. If the correct wording has not been included then it may still be possible for a claim to be made. It is always advisable to seek legal advice on whether the wording contained in the order is sufficient to prevent a claim or not.

If the decree absolute has not been obtained at the date of death then again a claim will still be possible, the case law on this usually focuses upon the extent to which a financial resolution of the divorce has been reached pre-death or not. If financial resolution remains outstanding pre-decree absolute (or even in some circumstances post-decree absolute) then a claim under the 1975 Act will normally be permitted to resolve the financial position.

If there has been a decree absolute but no exclusion of claims under the 1975 Act in the order then a former spouse is a class of eligible applicant who can pursue a claim under the 1975 Act. The one stipulation is that you must not have remarried. This kind of case normally arises where the divorce order provides for ongoing financial support rather than a clean break.

But what if you divorced your former spouse, the clause excluding 1975 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? The short answer is – yes you can.

The case which decided this is Chekov v Fryer (2015) where Miss Chekov and Mr Fryer divorced in the 1980s and the divorce order specifically included provision for no claim to be brought against each other’s Estates upon death. However, by the time Mr Fryer died they had been cohabiting again so Miss Chekov brought a claim against his Estate under the 1975 Act. She didn’t do so as a spouse or a former spouse but instead as a cohabitee. Mr Fryer’s children defended the claim saying that Miss Chekov should be prevented from bringing a claim because of the divorce order and that it was an abuse of process to bring a claim after that as a cohabitee. The Court disagreed with the children and confirmed Miss Chekov was allowed to pursue her claim as a cohabitee against Mr Fryer’s Estate.

It will be clear from the above that it is not always cut and dry that a former spouse cannot bring a claim against their ex-spouse’s Estate after death despite the presence of an exclusion clause in any order.

Given these scenarios are not by any means as rare as people might think it is crucial that a former spouse seeks specialist advice on whether they can bring a claim against their ex-spouse’s Estate as soon as possible following the death. You should seek the advice of a specialist solicitor in these circumstances and don’t assume you can’t bring a claim!