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Family Law: divorce and contentious probate rules

In this, the second in my series of articles looking at the link between family law and other areas of the law, I’m focusing on probate work.  I think the most interesting area of law I have worked in, second of course to family law, is contentious probate work.  I enjoyed it for the same reasons that I enjoy practising in family law.  It involves helping people through one of the most difficult times you can face in life and it is a privilege to see a client come out of the other side, so much better for it.  There is a particularly strong link, for me, between claims under the Inheritance (Provision for Family and Dependants) Act 1975 and claims under the Matrimonial Causes Act 1973.  The former is the piece of legislation under which ‘disappointed beneficiaries’ make claims against the estates of others, usually family members.

Under the Inheritance Act, spouses and civil partners and ex-spouses /civil partners form two of the categories of people permitted to make a claim.  So, when somebody dies leaving behind a person in those categories, if they have not made ‘adequate’ provision for them, a claim can be made against their estate.  I could spend a very enjoyable (for me at least) evening debating whether testamentary freedom (the right to choose who receives our assets on our death) truly still exists, but I have seen Inheritance Act claims where truly the provision for a surviving spouse has been so poorly thought out that they have effectively been condemned to living a very difficult and financially straitened existence, and their ability to claim has been their salvation.

Can an ex-spouse claim inheritance after your death?

  • When a party applies for Decree Absolute (to make the divorce final) or a Final Order (to make the dissolution of the civil partnership final) they move from the category of spouse /civil partner to ex-spouse/civil partner. That does not stop them from being entitled to bring a claim for provision but it means that the way the Courts will assess their claim will be different.  Claiming as a spouse/civil partner means the Court will assess what provision would be ‘reasonable’ on the spousal standard.  It will ask “what would this person have been entitled to receive if the marriage had been ended by a Decree Absolute/Final Order instead of death”.  It also means the Court is presented with a much wider set of criteria to consider when deciding what provision to make (reflecting the reality on divorce/dissolution).

As an ex-spouse or civil partner, the Court applies the maintenance standard which means it asks “what provision should be made in all of the circumstances for the claimant’s maintenance?”.

What are the benefits of Decree Absolute/ the Final Order?

Sometimes our clients will potentially benefit from applying for Decree Absolute or the Final Order at the earliest opportunity.  Often they are better advised to hold off from applying until the financial issues arising out of the divorce/dissolution have been resolved.  It is not a ‘one size fits all’ situation and so advice should always be sought.

  • Something on which we regularly advise divorcing clients is the importance of the clean break.  This is important for many reasons.  Chiefly, the clean break prevents further claims arising out of the marriage being made at some time in the future (yes, a divorce or dissolution does not mean that those claims die).  But it also, if the standard wording is adopted, should mean that that claims under the Inheritance Act following the divorce will be excluded.  This means that both claims as spouses and ex-spouses will be excluded, something which cannot be achieved simply by applying for the Decree Absolute/Final Order.

If you would like to discuss any of the issues referred to in this blog please do contact us.

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