Since the change in the law permitting opposite-sex couples to enter into civil partnerships in England and Wales, the provision that civil partners can expect under the Inheritance (Provision for Family & Dependants) Act 1975 (“the Inheritance Act”), in line with spouses, is likely to become more and more relevant in the future.

Reasonable financial provision for spouses and civil partners

Under the Inheritance Act, spouses and civil partners have the same rights to make a claim against their deceased spouse / civil partner’s estate and their case is decided according to the same test as to what reasonable financial provision means for them.

The test is that financial provision from the deceased’s estate should be reasonable in all the circumstances of the case and this is not simply limited to what they require for their maintenance.

This is a more favourable test for spouses and civil partners than for all other applicants under the Inheritance Act, where their test for provision is limited to what is required for their maintenance needs.

Additional factors

When the court considers these claims, it tries to balance a number of factors (e.g. financial needs and resources and health needs). There are specific additional factors which only apply to cases made by spouses or civil partners often giving rise to them receiving greater provision from the Estate than other applicants.

These include the court taking into account the age of the applicant, the duration of the marriage / civil partnership and the applicant’s contribution to the welfare of the family during the marriage / civil partnership. The longer the relationship and the more dependant the applicant was upon the deceased the more likely the court will order substantial financial provision to be made for the spouse/civil partner.

The notional divorce

A further specific factor which the judge must consider only for spouse / civil partner applicants, is the provision which they might reasonably expect to have received if on the day of the deceased’s death, the marriage or civil partnership had been terminated by divorce.

This is often referred to as the “notional divorce” test and has led to a lot of cases making comparisons to divorce cases to determine how much a spouse / civil partner can expect to receive from their loved one’s estate.

Whilst this can be helpful in providing a starting point for determining these claims there are the following important points to remember with the notional divorce test:-

1. The test requires consideration of the division of the joint assets rather than just simply dividing the deceased’s estate assets. This will therefore still require an analysis of the spouse / civil partner’s own assets, and this is often not appreciated by clients;

2. Whilst equality of assets between a spouse / civil partner and the deceased is often the starting point, it is not a guarantee that they will receive 50% of the value of their joint assets with the deceased. Factors such as the length of the marriage and the financial contribution each spouse / civil partner made to the relationship will be borne in mind by the Court when determining what reasonable financial provision amounts to in the case;

3. This notional divorce element of the Inheritance Act claim for spouses / civil partners is still just one factor of many which the Court can bear in mind when deciding the case. In particular, the Court could consider it reasonable to provide an applicant with more than 50% of the joint assets as they are the only person in the relationship to have survived.

Instruct a specialist

The intricacies of how best to assess and formulate a spouse / civil partner claim under the Inheritance Act is a further reason why it is so important to instruct a specialist in these cases to maximise the benefit received from the claim. Contact our Family team for more information.