What happens if your spouse dies during divorce proceedings?

by Kidd Rapinet on October 22, 2024

If your spouse passes away during divorce proceedings in the UK, the legal and financial landscape can change significantly, particularly with respect to any financial settlement. Whilst your entitlements will typically fall under inheritance law, if a financial order has been made, you may still be entitled to certain agreed provisions, but ongoing maintenance payments will cease. Legal advice is crucial to ensure you navigate this sensitive and complex process effectively.

Termination of divorce proceedings

When one spouse dies before the divorce is finalised (before the decree absolute is granted), the divorce proceedings come to an immediate end, and you remain legally married. This has important consequences for inheritance and financial claims, especially when considering whether a financial order has been agreed or not.

Scenario 1: No financial order in place

If your spouse dies before a financial order (either by agreement or contested proceedings) has been made, you lose the ability to pursue any financial claims through divorce. However, as you remain legally married at the time of their death, your entitlements would shift to claims under inheritance law.

If there’s a Will if your partner dies during divorce process

If your spouse dies with a valid will and you are not divorced, their estate will be distributed according to that will. As the surviving spouse, you are likely to inherit whatever has been left to you. However, if the will does not make reasonable financial provision for you, you may still be able to make a claim against the estate under the Inheritance (Provision for Family and Dependants) Act 1975. This allows for financial provision to be made for you if you were financially dependent on your spouse or if the will did not provide sufficient support.

If there’s no Will (Intestacy) if your partner dies during divorce process

If your spouse dies without leaving a will (intestate), and you are not divorced you will generally inherit under the rules of intestacy. This means that if they have children, you are entitled to the first £270,000 of the estate, all personal possessions, and half of the remaining assets, with the other half going to the children. If there are no children, you will typically inherit the entire estate.

Scenario 2: Financial order already in place

If a financial order had been made (either by consent or through a court ruling) before your spouse’s death, the terms of the financial settlement remain valid and enforceable. This means:

  • If you were entitled to a lump sum or property transfer

  1. You can still receive any lump sum payments or property transfers agreed under the financial order, as these form part of your entitlement, regardless of your spouse’s death. This is, unless, you treat the death as a ‘Barder Event’, i.e. allowing a party to seek to set aside a financial order made during divorce proceedings if a significant event occurs shortly after the order is made. The application to set aside the order must be made promptly, typically within a few months of the event. Although there is no strict time limit, delay can undermine the application.

In these circumstances, you may be suggesting that you receive a greater share of the marital property on the basis that they don’t have the same accommodation, capital and/or income needs.

  • If you were entitled to maintenance payments

If the financial order included ongoing spousal maintenance, these payments would cease upon your spouse’s death, as maintenance obligations do not survive death. However, you may still be able to make a claim under the Inheritance Act 1975 for reasonable financial provision, particularly if you were financially dependent on your spouse.

Joint Assets and Property

Assets held as joint tenants (such as a family home) will pass to you automatically by the “right of survivorship,” regardless of any will or intestacy rules. If the property was held as tenants in common, your spouse’s share will pass according to the terms of their will or under intestacy rules.

Pensions and Life Insurance

You may still be entitled to receive benefits from your spouse’s pension or life insurance policy if you were named as a beneficiary. If no beneficiary was named, the pension trustees may exercise discretion in distributing any death benefits.

Practical Considerations if your partner dies during divorce proceedings

The death of a spouse during divorce proceedings is a complex situation, especially in terms of financial entitlements. Whether or not a financial order has been made can significantly impact your rights, and seeking legal advice as early as possible is essential to protect your interests. If no financial order is in place, you may need to rely on inheritance law to secure your financial future, potentially making claims under the Inheritance Act.

This article was brought to you by Kidd Rapinet’s family solicitors. You can book an appointment with any of the family lawyers across our other offices in Aylesbury, Canary Wharf, Farnham, High Wycombe, Maidenhead or Slough, using the form provided.  Please use the links provided to find more information on divorce or separation, child arrangements and other areas of family law.

These materials and content have been prepared for the benefit of their viewers/readers. They are intended for marketing purposes only and are of a general nature and do not constitute legal advice applicable to any particular facts or circumstances. Kidd Rapinet LLP and/or the author(s) accept no duty of care, responsibility or liability for any loss or damage which you or any third party may suffer as a result of any reliance or use by you or them of these marketing materials and content, except to the extent it is not legally possible to exclude such liability. If you require legal advice on your own situation, please contact us so we can discuss how we may assist.

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