The New Year is traditionally seen as a time for fresh starts and clean slates. As couples look forward to the year ahead, many will have used last month as an opportunity to evaluate their home life and consider whether the time has come to exit unhappy marriages, civil partnerships or other relationships.  Those practising in family law commonly report an influx of enquires that this brings, and with the additional pressures of being confined to a lockdown during the pandemic, divorce rates may be even higher in 2021 than in the past.

In addition to the usual January trends, divorce among people aged 60 and over in England and Wales has risen since the 1990s, according to the Office of National Statistics, despite there being a general decline in divorce rates for other generations. Research suggests contributory factors to these so-called ‘silver-splitters’ may be longer life expectancies, relative wealth compared to the younger generations and better gender equality.

Irrespective of a couples’ age and circumstances, they are strongly recommended to create or update their Will when considering divorce proceedings, in order to formalise their wishes and ensure that their former spouse or civil partner does not receive a greater (or any) unintended share in their estate. It’s important to note that if a Will post-marriage has not been executed before a decree absolute has been obtained, then the estate would be distributed in accordance with the intestacy rules. This means that as at 2021, a spouse or civil partner would receive at least the first £270,000 of the estate – and potentially more – irrespective as to whether or not the couple is legally separating or are otherwise estranged.

Under English law, the principle of testamentary freedom allows a testator to distribute their estate in any way they wish and there is no legal requirement to leave assets to a spouse or civil partner.  However there is an exception to this under the Inheritance (Provision for Family and Dependants) Act 1975 (“the 1975 Act”), which allows the Court to depart from the provisions of a Will (and the provisions of the intestacy rules) and grant ‘reasonable financial provision’ to certain eligible claimants.

Current Spouse - Before the Decree Absolute 

If a spouse or civil partner were to pass away before the Decree Absolute was granted then the surviving partner could bring a claim under the 1975 Act as if they were still together. The Court will consider whether the provision made for the surviving spouse or civil partner, either by way of a Will or the intestacy rules, was reasonable in all of the circumstances. Indeed the Court is likely to treat the spouse’s/civil partner’s needs as a priority against the competing needs of the other beneficiaries, albeit this is very fact and case specific.

Previous spouse – After the Decree Absolute

It is recommended to check the terms of any settlement agreement or Court Order confirming the financial settlement on divorce, as there may be a bar on a former spouse or civil partner bringing a claim against the deceased’s estate. However if there is no express provision, then former spouses and civil partners are able to bring a claim provided that they have not remarried. In this instance, the Court will consider only what reasonable provision is required for their maintenance

Time Limited 

There is a strict time limit to bring such a claim at Court, being 6 months from the date of the Grant of Probate or Letters of Administration. It is therefore strongly recommended that clients seek urgent legal advice if they think that they might have a claim under the 1975 Act.