Death and Divorce may sound brutal but the subject of Wills and inheritance is important when dealing with divorce.

What do I do if I have divorced but then my ex spouse dies shortly afterwards?  This may be an unusual situation but it can happen.

Our clients are advised during the divorce process that they should have a Will or review their existing Will. This is because divorce, meaning the Final Order, formerly known as the Decree Absolute affects inheritance under a Will.  The Final Order effectively treats the former spouse as if they have died and any provisions in a Will where any property or assets are bequeathed to the former spouse will pass as if that former spouse had died.  In other words if a spouse was to benefit under their spouses Will then that clause will fail and they will not inherit.

With the advent of the no fault divorce and the Court operating an online portal for divorce cases we are finding more clients are dealing with the divorce process themselves. This may seem uncomplicated however there are other considerations to take into account, such as preparing a Will or considering their position of inheritance from their spouse, ie not concluding the divorce to Final Order until financial claims are resolved in case their former spouse dies and they have lost the claim to inherit as their spouse.

So what claims can you make if you are divorced and your ex spouse dies?   Are you entitled to anything?

If financial claims have been agreed or ordered by the Court then you should receive your financial entitlement under the terms of the Order.  If there is no financial Order then you could claim against your ex spouses estate as a dependent and therefore there are possible claims against the deceased’s pension provider if they had a pension policy.  If there had been a financial Order then the issue of pensions such as pension sharing would have been dealt with and the living spouse may have had the benefit of a pension sharing order thereby providing that party with an income from this pension without the need to claim against the deceased’s estate, however in the absence of a financial Order the living spouse would have to make a claim against the estate of the deceased ex spouse.

If there are children and their parent has died then that child could also make a claim for financial provision from their late parent’s estate.

It is therefore important to take legal advice before or during the divorce process to ensure you are aware of all the other important factors you need to consider.

Please contact us as we are here to help:

Southampton office  [email protected]

Birmingham office  [email protected]

Rugby & Daventry offices  [email protected]  [email protected]

For Wills and Probate [email protected]