6 November 2019 | Comment | Article by Richard Adams

When is it possible to make a claim against your late ex’s estate?

My recent blog discussed media reports that Blake Civil-Fielder, the ex-husband of the late singer Amy Winehouse, intends to pursue a claim against the late singer’s estate, seeking a lump sum payment along with an ongoing monthly allowance for his needs, under the Inheritance (Provision for Family and Dependants) Act 1975 (‘the 1975 Act’).

The 1975 Act allows certain people to bring a claim against a deceased person’s estate if they believe that the estate has failed to make reasonable financial provision for them. I thought it would be useful to look in more detail at the circumstances where a person can still bring a claim against the estate of a former spouse; a question we are asked by clients on a regular basis.

There are a number of stages to divorce proceedings. First, the divorce petition is issued then a decree nisi is pronounced for either by consent, or following an order of the court in contested proceedings. Finally, a decree absolute is pronounced for; it is crucial to note that the marriage is not legally ended until a decree absolute is pronounced.

The divorce process pauses on death. So if one of the parties dies during the proceedings, legally the marriage is still valid.  Therefore, if the decree absolute has not been issued and one of the spouses passes away, the survivor can still seek financial provision as a “spouse” and, thus, be entitled to the highest standard of financial provision from the estate, available only to spouses.

When parties to a divorce have agreed the financial terms of their separation, it is commonplace for the final order of the court to contain a clause excluding either party from making a claim against their ex-spouse’s estate under the 1975 Act. The purpose of that clause is to ensure a full and final settlement of all claims the parties have against each other (‘often referred to as a clean break’) However, many orders don’t include such clauses meaning a former spouse can still potentially bring a 1975 Act claim, provided they haven’t remarried.

The answer to whether a former spouse can pursue a 1975 Act claim is therefore not always clear.

If you are considering bringing such a claim as a former spouse, it’s crucial that you receive expert legal advice as soon as possible.

Disclaimer: The information on the Hugh James website is for general information only and reflects the position at the date of publication. It does not constitute legal advice and should not be treated as such. If you would like to ensure the commentary reflects current legislation, case law or best practice, please contact the blog author.

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