divorce proceedings are typically a stressful and challenging time, but they can be made even more complicated and distressing by the death of an estranged spouse.
Regardless of any animosity during divorce proceedings, the death of an estranged spouse can be incredibly painful and bring greater uncertainty to an already daunting situation.
Are you automatically divorced if your spouse dies?
Until the Final Order of divorce (which was previously known as the Decree Absolute) – the legal document that ends your marriage – is made by the Court, you will remain legally married to your estranged spouse.
However, if your spouse passes away before this has been declared, the divorce proceedings will simply end as there is no longer a marriage to dissolve. In this case, you will be considered “single” and a widow or widower in the eyes of the law, free to remarry should you wish.
What happens to a divorce settlement if a spouse dies during or after proceedings?
While the divorce process itself would be brought to a conclusion in these circumstances, dealing with the associated financial element of divorce on death can be more complex.
The impact of the death of a spouse on the financial aspects of a divorce will depend very much on what stage any financial proceedings or discussions have reached and whether or not the Final Order in the divorce proceedings has been made.
When a financial order has already been made
If your ex-spouse passes away following the making of a final financial order and Final Order of divorce has been pronounced, then you, as the surviving spouse, can rely on the financial order to make a claim against your spouse’s estate for payment of what that order says you are to receive. The death of a former spouse does not automatically invalidate the original final financial order.
You will not be entitled to make any further claim against your ex-spouse’s estate if they die once payment has been made to you under the terms of the order. This is because the making of a final financial order by the Court or a consent order setting out a final financial settlement will draw a line in the sand in so far as the marital assets and their division are concerned – preventing either party from making future claims against each other.
When there is no financial order
The situation does, however, become more complex if a spouse dies before the making of a final financial order.
Where financial claims have not been finalised and there is no formal debt to be enforced, the first step would be to ascertain whether or not the deceased spouse had a Will.
If there is no Will, then the intestacy rules would apply, and you will be treated as a widow or widower. This means you would, potentially, be entitled to all of your ex-spouse’s assets, both those held jointly by you or in your spouse’s sole name, in accordance with the probate rules. This would vary depending if there were any children of the marriage it would also depend on whether you are still technically married. If the Final Order of divorce has been received then, under the intestacy rules, a former spouse would not inherit from the estate. If your deceased spouse has a Will, then much will depend on whether or not sufficient provision has been made for you in that document.
A Will is not automatically revoked by divorce or dissolution of a civil partnership. If a spouse has a valid Will before divorce or dissolution of a civil partnership proceedings commence then this will continue to be valid. Upon completion of the divorce or dissolution of the civil partnership, the Will would be read as if the former spouse had died, and they would not automatically inherit.
What about joint assets?
If you own the family Home as a joint tenant with your estranged spouse, on the death of your spouse the property will not pass under the terms of the spouse’s Will (if there is one) but instead will be automatically transferred to you. If you do not wish for your share of the house to pass to your spouse on your death, you can sever the joint tenancy resulting in the property being held as tenants in common enabling you to leave your share of the house to whomever you wish in your Will, as can your spouse.
Is there anything I can do if no financial provision is made or I believe the financial provisions made aren’t sufficient?
In both circumstances, if there is a lack of sufficient financial provision made for the surviving spouse or any dependants of the deceased, then the spouse or the deceased’s dependents can apply to the Court under the Inheritance (Provision for Family and Dependants) Act 1975.
When considering such an application, the Court will look at many of the circumstances of the case, commonly considered by the divorce Court, in deciding what provision should be made or whether a provision made in a Will is sufficient.
How Nelsons can help
Emma Stamp is a Senior Associate in our Family Law team, specialising in working with clients to resolve issues relating to divorce and separation, including finance and private children’s arrangements.
If you need advice on any divorce-related matter or have any other family law-related queries, please contact us and we will be happy to discuss your circumstances in more detail and give you more information about the services that our family law solicitors can provide along with details of our hourly rates and fixed fee services.
Please call Emma or another member of our team in Derby, Leicester or Nottingham on 0800 024 1976 or contact us via our online form.
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This article is for information only and does not constitute legal/financial advice. Please contact us for advice tailored to your specific position. Some of the content presented on our website has been generated with the assistance of Artificial Intelligence (AI). We ensure that all AI-generated content meets our high standards for accuracy and relevance.
