When a marriage breaks down it can be a sensitive and emotional time for all. The death of a spouse has a significant and often complex impact on divorce and any financial remedy proceedings stemming from the divorce.
The consequences of a spouse’s death depend on the stage of the divorce proceedings at the time the death occurs regardless of the reasons for the divorce and can lead to greater uncertainty.
What happens to my divorce if my spouse dies?
If you have started divorce proceedings but the Final Order in your divorce has not been pronounced when your spouse dies, you will no longer be able to continue with the divorce. The reason is that the divorce proceedings themselves are immediately terminated as the marriage cannot be dissolved by a court once one of the parties has died.
Therefore, any surviving spouse who's married to them at the time of death will be their widow or widower, not a divorcee.
What happens to financial claims if my spouse dies and my divorce is not finalised?
With regard to financial claims, if your spouse has not made a will then you should inherit from their estate as their next of kin. Any joint assets would usually pass to you as the surviving spouse automatically. If you held the family home as joint tenants, then this property would pass to you as the surviving spouse.
Do You Automatically Inherit from your Spouse?
The court’s jurisdiction to make financial orders under the Matrimonial Causes Act 1973 ceases upon a parties’ death. As a consequence, you as the surviving spouse, cannot continue with your claim for a financial settlement after death through the divorce process even if court proceedings have already been issued.
Your rights as a surviving spouse therefore shift from matrimonial law to inheritance law. As a widow or widower, you may have a claim against the deceased’s estate under the Inheritance (Provision for Family and Dependants) Act 1975.
Can You Enforce a Financial Order After Your Ex-Spouse Dies?
If you have a Financial Remedy Order setting out the division of finances stemming from your divorce and the Final Divorce Order has been pronounced and your spouse dies after that, then generally you would be able to enforce the terms of the Financial Remedy Order. A Financial Remedy Order is legally binding and is enforceable. The terms of the order can be enforced against the deceased’s estate. This includes any lump sum or property transfer that was awarded.
There are, however, exceptions to this general rule, one being that of spousal maintenance (the obligation to pay financial maintenance to a spouse) which typically ceases upon death. It may be possible for the surviving party to make a claim under the Inheritance (Provision for Family and Dependants) Act 1975. Child maintenance however is different. In most cases, future payments cannot be claimed from the deceased’s estate, only arrears of maintenance. If you are the paying party then you no longer have to pay.
A death shortly after a Financial Remedy Order is made may justify the court setting the order aside and re-evaluating the criteria as detailed in section 25 of the Matrimonial Causes Act 1973. This would be on the basis that the death was unforeseeable and the death amounts to a supervening event under “Barder” principles. This principle comes from the sad case of Barder v Barder in 1987 in which an order was successfully appealed out of time as a result of the wife killing the children and then committing suicide within a matter of weeks of the Final Order being made.
In these circumstances, the court deemed that this event fundamentally undermined the basis of the order previously made.
Another example may be, 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, you could 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.
Can my ex-spouse claim against my estate upon death if we did not have a Financial Remedy Order?
Under the Inheritance (Provision for Family and Dependants) Act 1975 your ex-spouse may make a claim against your estate for “reasonable financial provision”. This legislation allows individuals who were financially dependent on the deceased spouse to apply for financial provision from the estate.
Any ex-spouse intending to bring such a claim must do so under the 1975 Act within six months of the Grant of Probate being issued otherwise, the court’s permission is required to proceed.
What happens to pension claims in divorce if a spouse dies?
If You Are Still Married
If you are still married (you do not have the Final Order in divorce) and your spouse dies, you would be their widow or widower and would therefore be entitled to widow’s benefits under the pension.
If You Are Divorced Without a Financial Order
If you are however divorced, but do not have a Financial Remedy Order then you would no longer be able to claim against your spouse’s pension. You would also not be entitled to claim widow’s benefits because you would not be their widow or widower, you are a divorcee.
If There Is a Pension Sharing Order
If you do have a Financial Remedy Order and as part of that Order it includes a Pension Sharing Order, provided 28 days have lapsed since the Order was made and the Final Divorce Order has been pronounced, you are entitled to request that the Pension Share Order is still implemented.
If you are the person with the pension and the Pension Share 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 Share Order so that the pension stays with you.
What practical steps can I take to protect myself?
It is imperative that should your marriage break down, and you look to instigate divorce proceedings, that you revisit your nominated beneficiaries for your pensions or any other policies you may hold. You should also look to make or revise a Will to take account of your change in personal circumstances.
When should you seek legal advice?
The law surrounding death following the breakdown of marriage whilst in divorce or financial remedy proceedings is complex. It can be highly challenging time for all concerned and obtaining legal advice is crucial. This whole area of law is complex and if you find yourself in this position, you need to seek prompt legal advice at the earliest stage following the breakdown of your marriage to ensure practical arrangements can be put in place to protect you should the unforeseen death of a spouse arise.
In summary
In summary, what happens to a financial settlement if your ex-spouse dies will depend on several key factors including your marital status at the time of death, whether a financial order has been made, and the type of assets involved.
Without a finalised financial order, important claims (particularly those relating to pensions) can be lost or significantly impacted, while ongoing obligations such as maintenance may come to an end.
These complexities highlight the importance of taking early action and ensuring that financial matters are properly resolved as part of your divorce.
How Timms can help
If you are concerned about how your financial position may be affected, seeking timely legal advice can make all the difference. Our experienced family law team is here to guide you through every step and help you secure the best possible outcome, please contact us on freephone 0800 011 6666 or via email at legal@timms-law.com
Frequently Asked Questions
Can I still claim a financial settlement if my ex dies before divorce is final?
Generally no. Divorce proceedings end automatically on death, and with them the ability to pursue a financial order in the divorce. However, you may have alternative routes, such as a claim against the estate under the Inheritance (Provision for Family and Dependants) Act 1975, or rights as a surviving spouse under the intestacy rules (since, legally, you were still married). Acting quickly is essential, as strict time limits apply.
Does a financial order still apply after death?
It depends on the type of order and whether it had already taken effect. Lump sums and property transfers already implemented usually survive death. Ongoing obligations, such as spousal maintenance, typically end automatically when the paying party dies, unless the order was secured against assets or specifically drafted to continue. Pension sharing orders that have not yet been implemented can fall away on death, which is why timing matters significantly.
Can I claim against my ex-spouse's estate?
Possibly. A former spouse who has not remarried can bring a claim under the Inheritance (Provision for Family and Dependants) Act 1975 if reasonable financial provision has not been made for them. The claim must usually be brought within six months of the grant of probate. The court considers factors such as the length of the marriage, your financial needs, and any prior financial settlement or clean break order which can sometimes bar a claim entirely.
What happens to pension sharing if my ex dies?
This depends on timing. If your ex dies before the pension sharing order takes effect (typically 28 days after the decree absolute/final order, or when the order is sealed whichever is later), the order generally cannot be implemented and the pension benefits fall into the estate or pass under the scheme’s death rules. If the order has already been implemented, your share is secure and unaffected by your ex’s death. This is one of the strongest reasons not to delay finalising pension arrangements.
Do I still have to pay maintenance if my ex dies?
No. Spousal maintenance obligations normally end automatically on the death of the recipient. If you are the paying party and you die, the obligation usually ends too, unless the order was secured against specific assets or life insurance was arranged to cover it. Child maintenance is treated differently and continues to be assessed based on the child’s needs, often paid from the deceased’s estate or by the surviving parent. Reviewing life cover alongside any maintenance order is sensible protection for both sides.
