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17th December 2019

Claims by spouses and former spouses under the Inheritance (Provision for Family and Dependants) Act 1975

It is reasonable to expect that your spouse will make provision for you from their estate. However, 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 your spouse.
There is an exception to this under the Inheritance (Provision for Family and Dependants) Act 1975 (‘the Inheritance Act’). The Inheritance Act allows the Court to depart from the provisions of a testator’s Will, or the intestacy rules where there is no Will, in certain circumstances.

Who may make a claim?

There are certain categories of people who are entitled to bring a claim under the Inheritance Act for financial provision from the deceased’s estate.

One of these categories is the spouse or civil partner of the deceased. Another category is a former spouse or civil partner of the deceased, provided that they have not remarried or entered into a subsequent civil partnership.

There is a strict time limit to bring such a claim at court; being 6 months from the date of the Grant of Probate. Outside of this time period you will be time barred and require the court’s permission to bring the claim. Permission will only be granted in exceptional circumstances.

As the deceased’s surviving spouse, am I not automatically entitled to benefit from their estate?

No. If the deceased left a Will, their estate will be distributed in accordance with that Will. There is no automatic entitlement for the surviving spouse to receive anything.

If the deceased did not make a Will, their surviving spouse is entitled to a statutory legacy of £250,000, together with the deceased’s chattels, and half of the remainder of the deceased’s assets.

If you own any assets jointly with your spouse, they will pass automatically to you on their death. For example, if you own property as beneficial joint tenants or have a joint bank account.

Even if you do benefit from the deceased’s estate, you may still seek to bring a claim under the Inheritance Act, if the amount you receive does not constitute reasonable financial provision. The Court will consider whether the provision made for you under the Will is reasonable in all of the circumstances and is likely to treat the spouse’s needs as a priority whilst balancing the needs and resources of the other beneficiaries.

I am the deceased’s former spouse. Am I automatically entitled to benefit from their estate?

There is no automatic entitlement, but you may be able to bring a claim under the Inheritance Act. It is necessary to firstly check the terms of settlement agreement, or Court Order confirming the financial settlement on divorce, as there may be a bar on you bringing a claim against the deceased’s estate.

Claims by former spouses differ from those by current spouses, as former spouses can only claim what they require for their maintenance. If the deceased was making regular maintenance payments to you up until their death for example, you may have grounds to argue that you relied on the deceased for such support and have need of further financial provision from their estate.

When we divorced, the deceased and I agreed on a lump-sum settlement, rather than spousal maintenance. Does this affect my ability to bring a claim?

If a lump sum payment was made upon divorce, in full and final settlement, it is unlikely that you would be able to bring a successful claim under the Inheritance Act, as you were not reliant upon, or in receipt of ongoing maintenance from the deceased. In addition, the settlement on the divorce is likely to include a clause preventing you from bringing any further claims against your ex-spouse both in lifetime and on death. However, if the financial arrangements concerning the divorce were not finalised by a decree absolute, it may still be possible to bring a claim.

At Hewitsons, our team of experienced solicitors are specialists in advising upon Inheritance Act claims. If you are a spouse, or a former spouse of a testator, wishing to receive advise on bringing such a claim, please contact us or call 0330 311 0885 for an initial free 30-minute consultation, to discuss the options available to you.
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