What Happens With My Financial Settlement If My Ex-Spouse Dies?
In her latest Timms Blog, Family Law Solicitor Alison Wilding discusses “What Happens With My Financial Settlement If My Ex-Spouse Dies?”
When parties separate, they usually need to agree how their finances are going to be divided known as a financial settlement. But what happens if your former spouse dies before you have reached an agreement? The answer can depend upon whether or not you are still married and whether or not there is a court order in place.
What Happens If You Are Still Married?
If the Decree Absolute in your divorce has not been pronounced when your spouse dies, you will no longer be able to continue with the divorce. It means that you are still married to them so will be their widow or widower. This also means that you will not be able to pursue any claims for a financial settlement even if court proceedings have already been issued.
If your spouse has not made a will then you should inherit from their estate as their next of kin. Joint assets would usually pass to you automatically (the family home will only pass to you fully if it is held as joint tenants). Otherwise, you may be able to make a claim under the Inheritance (Provision for Family and Dependants) Act 1975 to be provided for from your spouse’s estate.
Changes To The Law
In a recent case a senior judge disagreed with this position. He believes that a party should be able to pursue a financial remedy claim against the deceased spouse’s estate just as you can make a claim for personal injury or debt. Although the judge had to make an order that followed the current law, he did give permission for the parties to appeal to the Supreme Court in the hope that this could lead to a change in the law.
We Do Have A Court Order – Can I Enforce The Terms Of That Order?
If the decree absolute has not been pronounced then you are still married. A financial order does not come into force until the date of the decree absolute. This means that you would not be able to enforce the terms of that order.
If the decree absolute has been pronounced then generally you would be able to enforce the terms of the order. For instance, if the family home is due to be transferred into your sole name or a lump sum is to be paid to you then this can still be dealt with. If the order has been made against you, for instance you have to pay a lump sum to your ex-spouse, then you may be able to apply to have the order set aside. In other words, ask the Court to order that you do not have to make the payment. Whether or not you will be successful will depend upon the circumstances of your case.
Spousal maintenance and child maintenance are different. In most cases, future payments cannot be claimed from the deceased’s estate. Only arrears of maintenance can be claimed. If you are the one paying the spousal or child maintenance then you no longer have to pay.
What Happens To My Claim Against My Spouse’s Pension?
If you are still married and your spouse dies, you would be their widow or widower and would be entitled to widow’s benefits under the pension.
If you are divorced but do not have a financial order then you would no longer have any claim against the pension. You would also not be entitled to claim widow’s benefits because you would not be their widow or widower.
If you have a financial order which includes a pension sharing order, then provided that 28 days have lapsed since the order was made and the decree absolute has been pronounced, you are entitled to request that the pension order is still implemented. If you are the person with the pension and the order has been made but not yet transferred to your ex-spouse, you can apply to the Court to ask them to set aside the pension order so that the pension stays with you. Otherwise although the pension company cannot transfer the funds to your deceased ex-spouse, equally they cannot return the fund to you so it would only be the pension company that would benefit.
If you wish to discuss these issues further, or any other family matters I am happy to help. Please don’t hesitate to contact me at a.wilding@timms-law.com. Alternatively, visit our website here.
November 2021