Divorce proceedings are generally a challenging and stressful time, but they can be made even more distressing and complicated by the death of your spouse. Regardless of the reasons for divorce, the death of your ex can still be incredibly upsetting and lead to greater uncertainty and complexity. This guide aims to answer any questions you may have if your spouse or ex-spouse dies during or after the divorce has taken place. Don’t forget, if you are in need of legal advice for your family finances, Wiselaw researches and lists family solicitors from across the UK, from Leeds, to Sheffield, Manchester, Birmingham, Nottingham, Bristol, Southampton, London, and beyond. Wiselaw has the right family lawyer for your needs.
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What happens if my spouse dies during the divorce process, but before final order?
Until the Final Order – the document that legally ends your marriage – is given, you will remain legally married to your spouse. If they die before this has been pronounced, the divorce proceedings will automatically end because there is no longer a marriage to dissolve. However, dealing with the financial fallout very much depends on what stage your financial discussions or proceedings have reached. In one example, a woman from Cambridge was mid-divorce when her husband died. During the divorce she was seeking half of the assets valued at £6m, but as he died before the divorce was finalised she changed her position, arguing that she was then entitled to all the marital assets, valued at £12m.
If there is a financial order
If someone’s ex-spouse dies after a final financial order has been made and Final Order has been declared, then the surviving spouse can usually rely on the financial order to make a claim against their spouse’s estate for payment as set out in the financial order.
There is no entitlement to make further claims against the ex-spouse’s estate if they die after payment has been made under the terms of the financial order. This is because making a final financial order or obtaining a Consent Order setting out a final financial order by agreement, draws a line in the sand so far as the matrimonial assets are concerned, which prevents both parties from making any future claims against the other.
If there is no financial order
If financial claims have not been finalised, the first step would be to find out whether or not your ex-spouse had a Will. If there is no Will, then they will be considered having died ‘intestate’ and the intestacy rules will apply. This means you would be treated as the widow or widower and might be entitled to all of your ex’s assets, both those held jointly and those in your ex’s sole name.
If there is a Will, then the situation very much depends on whether or not sufficient provision has been made for you within it.
In both situations described above, if there is a lack of sufficient financial provision made for a surviving spouse or any dependents such as children, then an application can be made to the court under the Inheritance (Provision for Family and Dependants) Act 1975.
What happens to spousal maintenance if the paying spouse dies?
Unless there is particular provision made for you in your ex’s Will or via their employer’s life assurance benefits, your maintenance will usually end. Relying on a Will is not as secure as it sounds, because your ex-spouse could rewrite and vary the terms. You can take out life assurance on your ex’s life, which could protect your maintenance upon their death. There are also income protection policies and critical illness policies which may be available, as well as specific maintenance protection plans.
What happens to child maintenance if the paying spouse dies?
Payment of maintenance will stop on the death of the paying parent. However, if there are any arrears, the Child Maintenance Service (CMS) can claim them from their estate. Although it should not do this without first obtaining the consent of the parent with care.
If the deceased parent does not leave a Will or does not sufficiently provide for their children, then they can make a claim as a dependant under The Inheritance (Provision for Family and Dependants) Act 1975. For further information as to who can apply and other criteria, please see below.
What if one spouse dies and the divorced couple still jointly owned the house?
How a property is dealt with on the death of a jointly owned home depends on what type of legal ownership is in place at the time of their death.
Under a joint tenancy, the owners own the entire property. This means that despite having two owners, there are no defined shares. The effect of the death of one owner in this situation is that their share automatically passes on to the surviving spouse or ex-spouse. This happens whether or not Wills are in place.
Tenants in common
Under this type of ownership, each owner owns a defined share in the property, which depends on how they decide to split the whole. This could be based on their respective contributions, or in equal shares.
If the property is held as tenants in common, it is sensible to obtain a Declaration of Trust, specifically setting out how the property is owned and what happens when one of the co-owners dies or wishes to sell their share.
Under a tenancy in common, because each owner has a defined and specific share, they are free to dispose of it as they wish under their Will.
If there is no Will in place, the share passes under the rules of intestacy.
Can an ex-spouse’s family be kicked out if the spouse who has died has left the house to someone else in a will?
The law states that if one spouse owns a property and the other spouse does not, the spouse that does not own the home has ‘home rights’. These rights include the right to live in the property and the right not to be forced to leave unless there is a court order saying so. It is essential that home rights are registered in order to ensure the individual is fully protected.
Registering home rights means that other people and organisations, such as the Land Registry, banks and anyone who wants to buy the property, know that the individual has the right to be there. That said, home rights end when the marriage ends, either by divorce or on the death of an ex-spouse. You may be allowed to occupy the property after the death of an ex if the court makes an order. This is called a continuation order. If a continuation order is granted, you will need to renew the registration with the Land Registry.
If a continuation order cannot be obtained, then you may be required to leave the property.
Your partner’s personal representatives or executors have a legal duty to remove you from the property so it can pass in accordance with your partner’s Will or the rules of intestacy if they have died without making a Will.
You may need to consider claiming against their estate under The Inheritance (Provision for Family and Dependants) Act 1975, as discussed above. In these cases, it is essential you get specialist legal advice before vacating the property.
What happens if the spouse who dies has a Will that leaves no money to their ex or their children?
The law in the UK states that if someone does not make ‘reasonable financial provision’ for their dependants, then they can claim under The Inheritance (Provision for Family and Dependants) Act 1975 (the Act). Under the Act, the following people can make a claim:
- A spouse or civil partner
- An ex-spouse or ex-civil partner who has not remarried or entered into another civil partnership
- Someone who has lived with their partner for at least two years before they died
- A child of the deceased
- A person who was treated as a child by the deceased
- Anyone who was being financially maintained by the deceased
The chances of making a successful claim also depend on several other factors, including:
- The financial position and needs of those named in the Will
- The size of the estate and how it’s made up. E.g. cash, property, savings, etc
- Whether anyone named in the Will or making a claim has a disability
- Anything else that could affect a claim, including the conduct of all parties
There is a strict 6-month time limit for making a maintenance claim, so it is important to move quickly. Any award that is made will be a ‘reasonable amount in the circumstances’.
The law in this area is far from straightforward and can be a long and drawn-out process, this is why it is important to get specialist legal advice as soon as possible if your children have been left out of their parent’s Will.
What if a divorced couple still had a business together and one of them dies?
It doesn’t take a legal specialist to know that business and divorce are an incendiary mix. But if you still run a business with your ex, it is essential you try to pre-empt the future by considering things such as partnership agreements or buy-sell agreements. For example, if a partnership agreement is in place, then provisions can be made for the business to continue and be taken over by the surviving ex-spouse.
However, if they have died with none of the above in place and the business is still a going concern, then the way forward depends on whether certain orders were put in place at the time of the divorce. If the business has been dealt with as part of a final financial order, then the business will continue or cease in accordance with those provisions.
If the deceased wrote a Will, then the business will be dealt with following their wishes. If there was no Will, then the business will pass under the rules of intestacy.
What happens to jointly owned pets if my ex dies?
There is no official legal registration for pet ownership in the UK, because pets are classed as ‘chattels’. However, there are some forms of proof of ownership (if required) such as micro-chipping, veterinary records or Kennel Club registration, which may help prove that you are the rightful custodian of a pet. With this evidence, you may be able to claim ownership under the Torts (Interference with Goods) Act 1977, if your pet has been taken from you, or if your ex has died and your pet has automatically been passed on to those it lives with.
What happens to the ex-spouse’s pension after they die?
Because pension benefits fall outside a person’s estate, they are not covered by a Will. Pension holders who want to name a beneficiary must complete an ‘expression of wish’ or ‘nomination of beneficiaries’ form when enrolling in a workplace or private pension. If someone nominates their spouse and then gets divorced and forgets to change the documents, the pension trustees may be obliged to pay out.
Many financial orders include a pension sharing order, and an ex-spouse is entitled to request that the pension order be implemented if their ex dies. However, if a final financial order was never obtained, then an ex-spouse may become a pension beneficiary if their deceased ex failed to update their wishes with their pension provider. Most pension holders are completely unaware that their remaining benefits may still pass to their ex when they die.
Different pensions have different rules. Some schemes pay out a lump sum when the pension holder dies, others will continue to issue payments to a surviving spouse, although at a reduced rate.
What happens to my finances and house if the person I was cohabiting with (unmarried) dies?
Many couples mistakenly believe that once they live together, or have lived together for a certain period, they automatically acquire rights that protect them on the death of a partner. The reality is that a surviving partner can only inherit if they are specifically provided for in their deceased partner’s Will.
Unmarried cohabitee rights to live in the property
If the property is in the sole name of your partner who passes away, you do not have any automatic rights to remain in the property. Your partner’s personal representatives or executors have a legal duty to remove you from the property so it can pass in accordance with your partner’s Will or the rules of intestacy if they have died without making a Will.
Here, you may need to consider making a claim against the deceased’s estate under The Inheritance (Provision for Family and Dependants) Act 1975, as discussed above.
If you contributed financially towards the upkeep of the property, you may be able to claim an interest under the Trusts of Land and Appointment of Trustees Act 1996 (TOLATA).
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