If one spouse dies before the divorce is finalised, what happens? Does the process continue? Is the ex-spouse still entitled to inherit their assets?
In the case of death during divorce, the effect of the spouse’s death will depend on what stage of the divorce the parties have reached. There are two distinct stages to bear in mind:
Before the Final Order
The Final Order is the second of the two orders required for divorce and dissolves the marriage. If one spouse passes away at any time prior to the Final Order being made, then the proceedings stop and the divorce cannot be completed. A Final Order cannot be sought after the death of a party. Any financial agreement or order put in place is not binding on the other prior to a Final Order being made.
In this situation, the survivor remains a widow or widower as appropriate and therefore would be entitled to the share of the pension of the deceased given to a surviving spouse. This applies both in relation to a state pension and a private pension, provided they have been so nominated. The surviving spouse will also be entitled to anything that is provided for under the deceased’s Will. Alternatively, if there is no Will then the intestacy rules will apply. As the survivor remains a widow/widower, under the intestacy rules they may be entitled to all of the deceased’s assets, whether they were held in sole or joint names. If insufficient financial provision has been made, the surviving spouse may have a separate claim against the deceased spouse’s estate.
After the Final Order
If there is a Final Order and a financial order is in place the order is enforceable against the estate of the deceased notwithstanding that death has occurred. This means that the surviving spouse can rely on the financial order to make a claim against the deceased’s estate. Effectively it becomes a debt that must be paid by the executors.
It is worth noting that the death of a party after a financial order is made could potentially give rise to grounds to set aside the financial order, but only in extremely limited circumstances.
However, if no financial order is in place and the party dies after the Final Order, the surviving spouse cannot make any direct financial claims in respect of the marriage.
Financial claims after the Final Order has been made
In these circumstances, if the survivor still needs to make a claim, it has to be done on a completely separate basis under the Inheritance (Provision for Family and Dependants) Act 1975.
This says that if you are a dependant, and the person dies without making adequate provision for you in their Will or under the Intestacy rules, you can apply to have the Will re-written to take your needs as a dependant into account. These claims can be extremely difficult.
There are two essential points to understand if you are using this route. Firstly, you have to be dependant within the strict definition in the Act. This includes but is not limited to the spouse or former spouse of the deceased. Secondly, an application must be made within six months from the date of representation (this is the date of which the executor of the Will obtains a Grant of Probate).
This whole area is complex and if you find yourself in this position, you need to seek prompt legal advice at the earliest stage. Please contact our Family Law team at firstname.lastname@example.org or 0345 450 5558