dies during divorce

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, there are two distinct stages to bear in mind:

Before the Decree Absolute

If one spouse passes away at any time prior to the decree absolute being pronounced, then the proceedings stop and the divorce cannot be completed.

The survivor remains a widow or widower as appropriate and therefore are entitled accordingly to the share of the pension of the deceased given to a surviving spouse, both in relation to a state pension and a private pension, provided they have been so nominated.

After the Decree Absolute

If there is a decree absolute and financial order in place but it has not yet been implemented, the order remains effective against the estate of the deceased notwithstanding that death has occurred. However, if either no order is in place or no decree absolute, on the death of one of the parties, the proceedings again die with them and cannot be continued.

What to do if your partner dies during the divorce

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.

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, and you have to notify your claim very promptly following the death of the deceased.

This whole area is complex and if you find yourself in this position, you need to seek prompt legal advice at the earliest stage.

Our Inheritance team specialise in just such claims and would be pleased to advise you.