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‘Til death do us part – financial provision when a spouse or former spouse dies.

This article explores the options available if a spouse or former spouse has died, leaving insufficient financial provision for the surviving spouse or former spouse.

In such cases, a claim can be made against the deceased’s estate under the Inheritance (Provision for Family and Dependants) Act 1975 (I(PFD)A 1975). The court will allow such a claim only where a spouse or former spouse has failed to make ‘reasonable financial provision’ in their will.

Section 3 I(PFD)A 1975 sets out the general considerations the court will have when considering any claim under the act. Those are:

(a)the financial resources and financial needs which the applicant has or is likely to have in the foreseeable future;
(b)the financial resources and financial needs which any other applicant for an order under section 2 of this Act has or is likely to have in the foreseeable future;
(c)the financial resources and financial needs which any beneficiary of the estate of the deceased has or is likely to have in the foreseeable future;
(d)any obligations and responsibilities which the deceased had towards any applicant for an order under the said section 2 or towards any beneficiary of the estate of the deceased;
(e)the size and nature of the net estate of the deceased;
(f)any physical or mental disability of any applicant for an order under the said section 2 or any beneficiary of the estate of the deceased;
(g)any other matter, including the conduct of the applicant or any other person, which in the circumstances of the case the court may consider relevant

Financial provision for a spouse

If a spouse has died and there is no reasonable financial provision left for that spouse in the deceased’s will, then an application can be made under (s1(1)(a)  I(PFD)A 1975.

In order to apply under section 1(1)(a) the applicant must have been married to the spouse at the time of their death. This means that if a Decree Absolute for final order of divorce has been obtained then once must claim as a former spouse unless the deceased has died within 12 months of the final order of divorce being granted. In such circumstances, the court (if it considers just and reasonable to do so) can treat the application by the surviving spouse as though the final order of divorce was not made. The benefit of this being that the divorce cross-check (explained below) will apply and there is a wider criterion to be considered by the court when deciding the application.

In the case of an application made by a spouse, reasonable provision (as mentioned above) means ‘such financial provision as it would be reasonable in all the circumstances of the case for a husband or wife to receive, whether or not that provision is required for his or her maintenance’.

In addition to the considerations set out at section 3 (1) of the 1975 act, there are further considerations to be made by the court where a claim is made by a spouse. Those are:

(a)the age of the applicant and the duration of the marriage [or civil partnership]
(b)the contribution made by the applicant to the welfare of the family of the deceased, including any contribution made by looking after the home or caring for the family.

The court must also have regard to the provision which the applicant might reasonably have expected to receive if the marriage had been terminated by divorce, rather than death. This is also known as the divorce ‘cross-check’. Various principles have been established by case law in relation to claims made by a spouse.

In February 2023, the Family Division of the High Court considered a claim made by a widow for half of her late husband’s estate (Re estate of Singh (deceased) [2023] EWHC 304 (Fam), [2023] All ER (D) 55 (Feb)). The husband in this case had died and left the entirety of his estate to his 2 male sons. The wife was left with no provision from the husband’s estate. She had very modest assets of her own and income of under £12,000 by way of state benefits. They had been married for 68 years and the entirety of the family wealth was built up during the marriage. The court noted this was the ‘clearest possible case’ in which an order should be made. The wife was awarded a 50% share of the estate. The court was required to undertake the cross- check and in doing so referred to White v White [2000] 2 FLR 981 and found that the claimant was a ‘wife who made a full and equal contribution to the marriage’. It was noted that the cross-check pointed ‘unerringly to an equal division of the assets’.

It was recognised the case of that P v G, P and P (Family provision: relevance of divorce provision) – [2006] 1 FLR 431 that a claim under the 1975 Act will not infrequently involve greater provision being made than would be made during financial remedy proceedings arising as a result of divorce, it being noted that in the former scenario there is only one spouse for whom to make provision.

Financial provision for a former spouse

Once a divorce has been finalised and the final order obtained, then any will take effect as though the surviving spouse had pre-deceased their spouse unless there is a contrary intention shown in the will. The same principle applies if a person dies intestate.

Further, when a financial remedy order is made in respect of a divorce, the order will usually be worded so as to prevent any future claims being made under the 1975 Act. This is known as the ‘clean break’ provision.

But what if the financial order does not prohibit such an application or if no financial order was ever made at all? If this is the case, then a former spouse will be entitled to apply for financial provision from the deceased’s estate under (section 1(1)(b) I(PFD)A 1975 if more than 12 months have elapsed since final order of divorce and they have not re-married.

In the case of a former spouse, reasonable financial provision means ‘such financial provision as it would be reasonable in all of the circumstances of the case for the applicant to receive for his maintenance’ (s 1 (2) (b). This means that when considering a claim by a former spouse and whether any financial provision for them has been ‘reasonable’ the court is limited to considering what is required for their maintenance. No such limitations apply for a spouse.

The additional considerations for claims made by a spouse as set out at  section 3 (1) of the 1975 act and the divorce cross-check do not apply to claims made by a former spouse.

In the case of Illot v Mitson [2017] UKSC 17 – the Supreme Court emphasised the importance of limiting awards to “maintenance”, being the provision of income rather than capital. It was noted that the concept of maintenance is broad but does not extend to everything that would be desirable for the claimant to receive, rather it must import provision to meet the everyday expenses of living.

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* Soulla Kokkinos, Andrew Crossley,  Julian Beard, Francecsa Clay.