We all know that marriages can break down for any number of reasons. In many cases the couple will divorce but not always- sometimes couples just separate but remain formally married.  This may happen, for example, if the couple do not want the hassle and expense of a divorce, or if they think they may reconcile, or for religious reasons, or they may be in the process of divorce negotiations when one of them dies.

But what does estrangement mean for their estate when one of the couple dies?  As far as the law is concerned, the couple are still married.  This can affect their estate in many ways:

  • If the Deceased had no will at all, the intestacy rules will apply. If there has been no dissolution of the marriage (decree absolute), the spouse would receive the “statutory legacy”, currently £270,000, plus half of anything above the statutory legacy, or the entire estate if the Deceased had no descendants.

  • If the Deceased’s last will was before the marriage, the marriage will usually have automatically revoked that will. The intestacy rules would therefore apply as above.

  • If the Deceased made a will during the marriage, this remains entirely valid unless it has been revoked, whereas if a decree absolute is issued, the spouse is automatically cut out of the will.

  • Even if the Deceased had made a will since the marriage, excluding or limiting provision for the spouse in light of their separation, the spouse would be able to bring a claim under the Inheritance (Provision for Family and Dependants) Act 1975 (known as the IPFDA) on the basis that the will does not make reasonable financial provision for them. The Court would assess this claim on the basis of what it is reasonable for a spouse to receive, but would take into account all of the circumstances of the case including the separation. It is worth noting that spouses are treated more generously than other people who can bring claims under the IPFDA who will only receive what the Court considers reasonable for their maintenance- a spouse is not limited to the maintenance standard.  It is also worth noting that the issuing of a decree absolute does not in itself bring an end to the spouse’s eligibility to claim.  Resolving division of the marital assets is key.  It is important to have the split of assets recorded in agreement as this can then specifically record that a future claim under the IPFDA is prohibited.
  • If the Deceased and their spouse (or an unmarried partner or former spouse following a divorce) owned property together as joint tenants, the Deceased’s half will automatically pass to the co-owner unless the joint tenancy has been severed, which is usually done by posting a formal notice to the co-owner.

So where does this leave everyone?

The Deceased’s family members may feel that the result is unfair, especially if the separation had been lengthy with no contact between spouses.  There are a wide variety of claims which might be possible, but the most likely is a claim under the IPFDA by the Deceased’s children or dependants.  This will be most likely to succeed if the children and dependants are of limited financial means.  This type of claim can even bring in the Deceased’s half of property owned as joint tenants.

The Deceased’s spouse is then left to defend the claim.  In the case of an IPFDA, they will be able to defend the claim on the basis of their own needs, by challenging the claimants’ needs, or on the basis of any other factors relevant to the reasonableness of the provision for the claimants, including matters such as the Deceased’s wishes and the conduct of all parties both during the Deceased’s lifetime and subsequently.

If you have suffered a bereavement and are concerned that your loved one’s will does not make reasonable provision for you, or if you wish to uphold a will which is being contested, our specialist inheritance dispute lawyers may be able to assist.  Send us an email at [email protected] or call our client co-ordinator on 01626 202384.