My ex has died: navigating death after or shortly before divorce

Death and Divorce

The end of a marriage is often a complex and emotionally charged process. But without careful planning, things can get a whole lot worse if your ex dies following separation compared to when you were together.

So what are the legal implications of your spouse or ex-spouse dying after or shortly before your divorce final order?

Wills and Inheritance

Unlike marriage, separation and divorce do not revoke a Will. That’s why your divorce solicitor will advise you to prioritise making a new one.

Another important consideration on separation is nominating a new beneficiary to private pension providers and life assurance companies. That’s because death benefits under these products pass independently of your Will.

If you have not made a new Will and you die before the divorce final order, your spouse will still inherit under the terms of your Will if they are a named beneficiary or under the intestacy rules if you do not have a Will in place.

If you have not made a new Will and you die after the divorce final order, for inheritance purposes, the law treats your ex-spouse as if they had already died. However, this can also result in unintended problems such as a partial intestacy.

Financial settlement

If you or your spouse die after you have separated but before you have a financial settlement in place, unless the deceased has made appropriate provision in their Will for the survivor (unlikely if they have already made a new Will) and/or nominated them to receive their pension benefits, the survivor will probably need to bring a financial dependency claim against the deceased’s estate under the Inheritance (Provision for Family and Dependants) Act 1975 (“the Inheritance Act”).

The situation is significantly worse for the survivor if the parties get their divorce final order before they have a financial settlement in place. That’s because awards under the Inheritance Act are significantly reduced for a ‘former spouse’ as opposed to a ‘spouse’. For this reason, it’s usually crucial for a divorcing couple to delay obtaining their final divorce order until they have a financial order in place.

Once a financial order has been made, if you are receiving maintenance from your ex-spouse under the terms of the order, payments usually cease immediately upon their death (i.e. they will not bind the deceased’s estate). Consequently, your divorce solicitor will advise you on the option of protecting payments by taking out a policy of assurance against the payer’s life.

If a lump sum is still to be received, the financial order creates a formal debt against your ex’s estate, which you can sue to enforce if necessary.

Executors are obliged to identify the deceased’s assets and liabilities, collect in the assets and pay any debts and liabilities before distributing the estate according to the terms of the Will. So, you should liaise promptly with your ex’s executors and attempt to agree a settlement with them.

Children arrangements: who will be responsible for my child?

This depends on who has parental responsibility for your child. A mother automatically has parental responsibility from the child’s birth. A father has parental responsibility if he was married to the mother at the time of the child’s birth or was named on the birth certificate. Failing that, a father can apply to the court for parental responsibility. Accordingly, in most cases, biological parents share parental responsibility.

Where parental responsibility is shared, upon the death of one parent, the other automatically gets sole parental responsibility. This happens regardless of whether your child has a relationship with their other parent.

So, if you think another person is more suitable to look after your child, you should make your wishes known in your Will. Although the person named will not automatically be appointed your child’s guardian, the court may consider your wishes in subsequent court proceedings.

If a Child Arrangements Order is in place naming you as the person with whom your child lives, then you can appoint a guardian in your Will even though you share parental responsibility with the other parent. Immediately after your death, the named guardian is appointed to look after your child. The guardian also shares responsibility with the other parent for making important decisions in your child’s life, such as:

• where they live.
• whether or not they receive medical treatment.
• where they are educated.
• whether they can leave the country.