Can My Ex-Wife Make a Claim on My Estate?
Many people assume that once they get their final order of divorce their ex-spouse has no further claims against them or their estate. Family lawyers and Will solicitors say that is not correct.
In this article, our lawyers look at when an ex-wife can make a claim against an estate and what you can do about it to protect your estate and your beneficiaries.
For expert family law and Will advice call our team or complete our online enquiry form.
Financial claims after a separation or divorce
When you separate or divorce your ex-partner their financial claims remain intact until you reach an enforceable agreement or the court makes a financial court order.
Even if you reach an agreement or the court makes a financial court order your ex-spouse may still retain all or some of their financial claims. That is why it is essential to use a family law solicitor to help you negotiate a financial settlement or to draw up your financial court order. It is equally important that your solicitor explains what the wording of the order means.
The only way you can achieve finality with no risk of further financial claims is if the court makes a clean break financial court order.
What is a clean break financial order?
A clean break financial court order can be made by agreement ( you and your ex-spouse ask a family judge to convert your agreement into a binding court order) or after a contested court hearing. Clean break orders can be confusing as there are 2 types:
- Immediate – as soon as the court order is made your ex-spouse cannot make any further claims or they cannot do so once the order is implemented. For example, an order will be implemented after the sale of a family home, the agreed division of equity, and the pronouncement of your final order of divorce
- Deferred – the clean break comes into effect when an event occurs. For example, if you are ordered to pay time-limited spousal maintenance the clean break may come into force when the spousal maintenance payments end. A deferred clean break can be confusing as the court order may allow the person receiving the spousal maintenance to apply to the court to extend the length of the spousal maintenance order or the person receiving the spousal maintenance may ask the court to make a lump sum payment or pension sharing order in their favour instead of them continuing to receive ongoing spousal maintenance. Some court orders do not allow the person receiving spousal maintenance to apply to court to extend the maintenance term
As clean breaks are complicated it is best to take legal advice on your financial settlement to see if you are likely to be able to achieve one and whether it is in your interests to do so. For example, if your ex-wife is in a new relationship and you think she will remarry you may not want to give your ex-wife more money to buy off her spousal maintenance claims. Why? Spousal maintenance automatically stops on re-marriage and it cannot be revived if the ex-wife’s second marriage breaks down. However, if an ex-wife cohabits rather than remarries you will only achieve a clean break if the spousal maintenance order provides for this.
Your priorities and goals
It is important that your family law solicitor takes their time to understand your priorities and goals. Some people are adamant that they want a clean break. There may be reasons for this, such as a bad experience in a first divorce, the future anticipated sale of a business, or wanting to protect your children from your ex-wife making a claim against your estate. Other people may be more sanguine about negotiating a clean break order. For example, if you do not have children and are not worried if your ex-wife tries to make a claim against your estate as you are leaving most of your money and property to charity and know that your executors can fight the claims in the unlikely event that your ex-wife brings a claim against your estate.
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Can your ex-wife make a claim against your estate?
Whether your ex-wife can make a claim against your estate will depend on whether you have a financial court order, its precise terms, and whether your ex-wife has remarried.
If you are concerned that your ex-wife may have a claim against your estate under the Inheritance Act then talk to a Will solicitor. She will still have a potential claim even if you make a Will and cut her out. That is because under the Inheritance (Provision for Family and Dependents) Act 1975 anyone who falls into one of these categories of people has a potential claim against your estate:
- A wife, husband, or civil partner
- A former wife, husband, or civil partner (provided they have not remarried)
- A child or someone treated as a child by the deceased
- Someone who was living with the deceased for the 2 years before the deceased’s death
- Anyone who immediately before the deceased’s death was financially dependent on them
A private client solicitor can provide you with estate planning advice and draw up a Will that reduces the risk of your ex-wife bringing a 1975 Act claim. They can also work with a specialist family law solicitor so you can explore whether it is worth asking the court to make your existing financial court order into a clean break order. This may be possible if, for example, the court left spousal maintenance open-ended because your ex-wife might need spousal maintenance in the future but she has been in a long-term cohabiting relationship so you think the time is right to secure a clean break.
At Evolve Family Law our family law solicitors work closely with our private client and Will lawyers and recommend that when you separate you think about making a Will or changing the terms of your existing Will.
For expert family law and Will advice call our team or complete our online enquiry form.
