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Death and Divorce: Why it’s so important to get advice on your will and finances when getting a divorce?

Our People - GN
Rhea Taylor-Broughton
30 January, 2020

Divorces are notoriously difficult, both emotionally and financially for those involved and can be extremely challenging for many reasons. These issues may be compounded if there are young children in the family, or where the circumstances of the divorce are contentious, for example where there is an allegation of adultery. Where terminal illness or a long-standing health condition is involved, there is another layer of complexity.  

But what if a spouse dies before the Decree Absolute (final order) is granted by the court? 

The death of either party would ordinarily bring the proceedings to an end, at whichever stage they are in, and the parties would not be considered divorced; instead they would be widowed. Generally this means that the couple will remain married for legal purposes including but not limited to inheritance. 

What about any child arrangements order(s)?

Like with the divorce proceedings, with the death of a party, any proceedings regarding outstanding arrangements for any children of the family are brought to an end. 

It is most likely that the children would be cared for by their surviving parent, unless there are significant welfare concerns to consider, in which case the other family members/loved ones or the Local Authority may become involved and make an application to the court.  

What if there’s a financial order? 

It is always prudent to deal with the matrimonial financial matters within divorce proceedings, before applying for Decree Absolute. This is because failing to do so decreases the likelihood of a clean break from your spouse and also makes it possible for them to issue a claim and benefit from any wealth or assets that you may accumulate after the divorce. 

So if good practice has been followed the relevant financial order(s) will usually be made prior to the Decree Absolute being granted. In the event that a spouse were to die following a financial order(s), the court order would still be enforceable. This means that, for example, the widow/widower will still receive the lump sum that they may be due and can continue to receive maintenance from the deceased spouse’s estate etc. 

For this reason, if there are particular concerns about the health of one of the spouses during the divorce, it may also be advisable to attempt to advance the divorce process by applying for directions to allow for an early hearing or applying for the time between the Decree Nisi (conditional order) and Decree Absolute to be shortened.

When a financial order has been made and the ex-spouse’s death occurs shortly afterward, the surviving spouse may be able to argue that the order is not enforceable depending on the circumstances of the spouse’s death. Circumstances such as this are known as a “Barder” event. In the case Barder v Caluori [1988] AC 20, [1987] 2 FLR 280, HL the wife committed suicide and killed the children shortly after a financial order had been made. The husband successfully applied out of time to have the order set aside after Lord Brandon held that the circumstances of the death invalidated the order. The husband was able to establish that: 

a)     The new events (the death) were such that they invalidated the basis upon which the order was made, and 

b)     If leave was to be given on those grounds it would be certain or very likely to succeed.        

Conversely, where there is no financial order to be enforced the surviving spouse may be able to bring a claim under the Inheritance (Provision for Family and Dependants) Act 1975, seeking a share of the deceased’s assets. 

Many of these problems can be avoided if there is a valid will in place. 

What if there’s a will?

At every stage up until the Decree Absolute is made, each spouse’s will remains valid. It is common that the will may have been drafted to mirror the other spouse’s, or at a time when the relationship had not yet begun to breakdown and when the spouses intentions were vastly different from those at the time of beginning the divorce process. Therefore, it is always advisable that each spouse strongly consider amending their will, or making one, once the ink has dried on the divorce petition or it has been lodged at court to cover the eventuality, however unlikely, that one of them dies prior to Decree Absolute.  

For inheritance purposes, once a Decree Absolute has been granted, any mention of the former spouse is removed from the will entirely. The rest of the will remains valid. It therefore follows that if a spouse were to die before the Decree Absolute, the surviving spouse could expect to receive the usual death benefits and pension rights from their deceased’s spouse’s estate as they would have received had they not begun divorce proceedings.

In the case of a spouse dying intestate (without a valid will) in the midst of divorce proceedings, the surviving spouse would be either the sole beneficiary or one of the beneficiaries on intestacy. This means that the surviving spouse would stand to inherit all of the deceased’s personal possessions, the first £250,000 of the estate and half of the remaining value of the estate above £250,000. They will also be able to benefit from the use of the deceased spouse’s nil rate band. 

I hope that the issues discussed in this article remain hypothetical within your own divorce matter, however, in my experience it is always best to be prepared for numerous eventualities when it comes to sensitive matrimonial matters. If you are in doubt, or if you have any questions regarding any of the issues in this article please feel free to call and book to attend our free Family Law clinic on Wednesday’s between 2pm – 4pm.

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