Death in divorce

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Regardless of any animosity during divorce proceedings, the death of an estranged spouse can be incredibly distressing, not least because this can create even greater uncertainty within an already difficult and complex process. Below we look at why.

What are the rules relating to death in divorce?

In divorce proceedings, you will remain legally married until the final decree in the divorce is pronounced, i.e.; the decree absolute. If, however, your spouse passes away prior to this, , this will automatically bring the marriage to an end. That said, even though the divorce in itself will no longer be needed, this doesn’t necessarily resolve any outstanding financial issues in your favour.

Equally, if the decree absolute has already been pronounced prior to your spouse dying, but you have not yet finalised the division of assets, the death of your former spouse can result in an even less favourable financial outcome for you.

The timing of any decree absolute, and whether or not any financial agreement or order has already been reached at the point of death, is therefore crucial here. In particular, if your spouse dies, then the question of whether you were still legally married at the time is hugely important, as this will affect how the deceased’s estate is distributed. 

What happens if my spouse dies before we are divorced?

If your spouse dies before the decree absolute is made, legally you will still be  married at the time of death. This means that you will inherit in accordance with the provisions made by them under any last will and testament, or where they died without making a will, under the rules of intestacy.

In cases where your spouse died intestate, this may result in a more favourable outcome for you than under any proposed financial settlement, especially if there are jointly owned assets. If, on the other hand, the deceased had a will that disinherited or made inadequate provision for you as the surviving spouse, you will have lost the benefit of being able to make a financial claim on divorce.

It would still be open to you to bring a claim against the deceased spouse’s estate under the Inheritance (Provision for Family and Dependants) Act 1975, but there is no guarantee of success, as this may be challenged by other beneficiaries.

It is also worth noting that if a financial order has already been put in place at the time of death, either by consent or through contested proceedings, that order will now be wholly unenforceable. This is because a financial order will only become enforceable once a decree absolute has been granted, and a decree absolute cannot be granted when one spouse is deceased.

What happens if my spouse dies after we are divorced?

In circumstances where the decree absolute has already been granted but there is no final financial order at the point that your former spouse dies, you would again not be able to bring a financial claim under the Matrimonial Causes Act 1973.

You would also no longer be eligible to inherit under the intestacy rules, where property would normally pass to a spouse, as well as being unlikely to inherit under the terms of any will, especially where any previous will had been revoked and replaced by your former spouse following the divorce.

This would therefore leave you making a financial claim under the Inheritance Act 1975. In these circumstances, this would be limited to maintenance, which could make a considerable difference to any financial outcome you would have otherwise received on divorce, especially where the majority of the matrimonial assets had been acquired in the sole name of your former, and now deceased, spouse.

Pensions

Pensions can be particularly tricky if something unexpected happens to one party.  A pension sharing order only comes into effect on the later of the granting of the decree absolute or 28 days from the date of the pension sharing order.  If the decree absolute is granted and a spouse passes away within 28 days of the order then there is a chance that the pension sharing order will fail.  This is because the pension fund with have terminated on the member’s death before the pension sharing order came into effect. In addition, as the marriage has been formally ended by the decree absolute, the surviving ex-spouse would not be entitled to any spousal benefits under the pension, for example, a widow/widower’s pension.  They would be left with no provision whatsoever.  Whilst there may be a small window of risk, this scenario does occur and inevitably the surviving spouse is very unhappy at the outcome.  Accordingly, it is probably good practice in cases where there is a pension sharing order, to wait at least 28 days from the date of the order before making the application for decree absolute.  There can then be no chance of being left without both the pension share and spousal benefits under the pension itself

Needless to say, given the importance of the timing of any decree absolute, and a final order for financial provision on divorce, it is always best to seek expert legal advice at the earliest possible opportunity.

Legal disclaimer

The matters contained herein are intended to be for general information purposes only. This blog does not constitute legal advice, nor is it a complete or authoritative statement of the law and should not be treated as such.

Whilst every effort is made to ensure that the information is correct, no warranty, express or implied, is given as to its accuracy and no liability is accepted for any error or omission. Before acting on any of the information contained herein, expert legal advice should be sought.