Introduction
For individuals in Cardiff, Central London, and across England and Wales, the intersection of divorce, financial settlements, and inheritance law is a critical area of concern especially when a former spouse dies before a financial settlement is reached. The recent Supreme Court decision in Unger and anor v Ul-Hasan (deceased) and anor [2023] has clarified that financial claims under matrimonial law do not survive the death of a party. However, the Inheritance (Provision for Family and Dependants) Act 1975 (“the Inheritance Act”) may provide a vital alternative route for those left without reasonable financial provision after divorce.
This article explains the practical steps and legal considerations for making an Inheritance Act claim where parties have divorced but no financial settlement has been reached.
Why Is a Financial Settlement Important After Divorce?
A financial settlement, usually formalised by a court order, determines how assets, property, and income are divided between divorcing parties. If no settlement is reached and approved by the court, both parties remain at risk—particularly if one party dies before the process is concluded. As confirmed by the Supreme Court, any outstanding financial claims under the Matrimonial Causes Act 1973 or related legislation are extinguished upon the death of either party. This can leave the surviving former spouse in a precarious financial position.
Inheritance Act Claims: The Key Alternative
Where a financial settlement has not been reached and a former spouse dies, the surviving ex-spouse may be able to bring a claim under the Inheritance (Provision for Family and Dependants) Act 1975. This legislation allows certain categories of people, including former spouses and civil partners, to apply for “reasonable financial provision” from the deceased’s estate.
Who Can Claim?
- A former spouse or civil partner who has not remarried or entered into a new civil partnership.
- The applicant must not be precluded from making a claim by a “clean break” order or a final financial order made in the divorce proceedings.
What Can Be Claimed?
- The court can award maintenance, lump sums, property transfers, or other financial provision as is reasonable for the applicant’s maintenance.
- For surviving spouses (as opposed to former spouses), the court can award what is reasonable in all the circumstances, not limited to maintenance.
Key Considerations for the Court:
- The financial resources and needs of the applicant, both now and in the foreseeable future.
- The size and nature of the deceased’s estate.
- Any obligations and responsibilities the deceased had towards the applicant.
- The duration of the marriage and the standard of living enjoyed.
- Any physical or mental disability of the applicant.
- Any other relevant circumstances, including the conduct of the parties.
Time Limits and Procedure
- Time Limit: An Inheritance Act claim must generally be issued within six months of the grant of probate or letters of administration. The court has discretion to allow late claims, but this is only exercised in exceptional circumstances.
- Procedure: The claim is made in the civil courts, and early legal advice is essential to ensure compliance with procedural requirements and to maximise the prospects of success.
Practical Steps for Potential Claimants
- Act Quickly: If your former spouse has died and no financial settlement was reached, seek legal advice immediately to avoid missing the strict time limits.
- Gather Evidence: Collect all relevant documentation, including details of the divorce, any ongoing financial negotiations, and evidence of your financial needs.
- Assess the Estate: Obtain information about the size and composition of the deceased’s estate, as this will be central to the court’s assessment.
- Consider Mediation: Many Inheritance Act claims are resolved through negotiation or mediation, which can be quicker and less costly than court proceedings.
Limitations and Challenges
- The Inheritance Act is not a substitute for a full financial remedy under matrimonial law. The provision for former spouses is generally limited to maintenance, not a share of capital or property unless necessary for maintenance.
- If a “clean break” order was made in the divorce, or if the applicant has remarried, the right to claim under the Inheritance Act may be lost.
- The court’s discretion is wide, but claims are scrutinised carefully, and not all applications succeed.
Why Specialist Advice Matters
Inheritance Act claims following divorce are complex and fact-specific. The recent Supreme Court decision underscores the importance of progressing financial claims during divorce proceedings and highlights the risks of delay. For clients in Cardiff, Central London, and throughout England and Wales, specialist legal advice is essential to protect your interests and to navigate the interplay between family and inheritance law.
Conclusion
If you are a former spouse who has not reached a financial settlement and your ex-partner has died, you may still have options under the Inheritance (Provision for Family and Dependants) Act 1975. However, strict time limits and complex legal criteria apply. Our experienced team in Cardiff and Central London can advise you on your eligibility, the strength of your claim, and the best strategy to secure your financial future.
Contact us today on 02920 765050 or at reception@clodes-solicitors.com for a confidential consultation about Inheritance Act claims after divorce.
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