Lawyers are warning families of divorced couples there is potential for ex-spouses to use an often overlooked loophole to make an inheritance claim against their estate after their death, even many years after the separation.
Divorces in England and Wales are back up around pre-Covid levels, according to the latest figures. There were 102,678 divorces – and 1,138 civil partnership dissolutions – in 2023.
The number of divorces was up 28% between 2022 and 2023, due to a hump caused by the introduction of no-fault divorce in 2022, which made it easier to legally separate without a fight. The average marriage lasted 12.7 years before divorce in opposite sex couples.
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Fewer divorces are occurring overall because fewer people see the benefits of marrying now. But as a percentage, more marriages than ever are leading to divorce. Just over a fifth (22.8%) of couples who married in 1963 divorced before their 25th wedding anniversary, according to the official data. This rose to 40.7% of those who married in 1998.
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Law firm DMH Stallard said with divorce rife, people need to be aware of the legal framework that allows an ex-spouse to seek 'reasonable financial provision' from a deceased's estate, even years after a divorce has been finalised.
Cathyrn Culverhouse, a partner at DMH Stallard, said: "Many people assume that once a divorce is concluded, their ex-spouse has no further claim to their assets. However, the Inheritance Act 1975 provides a legal avenue for them to do so, making it crucial for individuals to review and update their estate planning documents to reflect their current wishes."
How can a divorced partner claim on my estate?
To seek "reasonable financial provision" from a deceased's estate, someone must typically make a claim under the Inheritance (Provision for Family and Dependants) Act 1975.
This allows certain individuals who were financially dependent on the deceased, or had other close relationships with them – like a former spouse – to apply to the court for financial support from the estate, if the will or intestacy rules do not make reasonable provision for them.
According to the legal experts at DMH Stallard, a claim under the 1975 Act must be brought within six months of the grant of probate being issued.
However if an ex-husband or ex-wife remarries, their claim for a financial settlement from the estate will fail – with the exception of a claim for maintenance between the date of death and the date of remarriage.
Gonzalo Butori, senior associate at DMH Stallard, said: "The emotional and financial consequences of a post-death claim can be devastating for the surviving family. We advise that taking proactive steps can help protect an estate and reduce the risk of a successful claim by a former spouse.”
How to protect your assets in a divorce
1. Ensure your divorce is finalised, including a clean break financial order
Until the decree absolute has been made, you remain married, meaning your ex-partner has more rights on your estate. And, unless a clean break financial order has been made at the time of the divorce, the spouse's financial needs will not have already been considered by the court (meaning they can’t claim later).
“If you die before that happens, your ex-spouse may be able to bring a claim against your estate for financial provision,” said Cathryn Culverhouse, partner at DMH Stallard.
2. Write a no-claim clause into your divorce
“In the case of an ex-spouse, the most important thing you can do is to include a specific clause in your divorce order that specifically excludes claims against your estate,” said Culverhouse.
If included, this will protect your estate from any claim under the Inheritance Act 1975 that any ex-spouse may bring.
3. Make a will
It is worth getting proper and professional advice when drafting your will to ensure it is valid and achieves the outcomes you desire. This will provide your executors with your wishes, giving them the legal basis to carry out those wishes. If the will has been prepared by solicitors, they should also have a file of papers setting out your instructions to them which can also be used to defend any claims.
“If you do not leave a will, then your estate will be administered as per the intestacy rules (a statutory framework setting out who benefits in order depending on their legal relationship to you) which may not reflect your wishes. Furthermore, the court will have no information about your wishes,” Culverhouse said.
4. Letter of wishes
It is a good idea to include a letter of wishes alongside your will setting out why you have chosen to benefit some and not to benefit others. This is not binding, but it is a useful document set out in your own words which can be used to defend any claim brought.
5. Communication
It is not always easy to do or possible, but clear communication with both the beneficiaries and those who may not benefit from your estate can often reduce the likelihood of a claim.
Culverhouse said: “This allows you to deal with any conflict whilst you are alive and to explain the reasons for your decisions. If done in writing, this can also be placed with the will to show that they were aware of what they were going to receive or not receive as the case may be.”
