Can my Ex-wife Make a Claim on my Estate?
Potentially, your ex-wife could claim against your estate. That’s why when you are separating or getting divorced you need joined-up advice from a family lawyer and a Will solicitor.
In this article, the estate planning lawyers at Evolve Family Law answer your questions on what happens to your estate if you pass away leaving an ex-wife.
For expert advice call our team of specialist divorce and estate planning lawyers or complete our online enquiry form.
Ex-wife’s claims against an estate
An ex-wife’s claims will depend, to a large extent, on whether you are divorced or not. No-fault divorce proceedings are not finalised until your final order of divorce is pronounced. If you divorced before the divorce law reform you may have received a decree absolute from the court ending your marriage.
If you have not completed the divorce process you may still be married at the date of death. Therefore, your estranged wife is your legal next of kin. However, you may have made a new Will when you separated so she is no longer a beneficiary of your estate.
Your ex-wife can claim your estate or a share of it even if:
- Your divorce has been finalised
- You have a separation agreement
- You have a financial court order
- You are not paying your ex-wife spousal maintenance
- You have remarried
- You have children
- You have made a Will excluding your former wife
The only circumstances when an ex-wife cannot bring a claim against your estate is when the court has made a clean break financial court order preventing any further monetary claims by her or your ex-wife has remarried.
Do you have a clean break financial court order?
If you got divorced some years ago you may not be certain if you secured a clean break financial court order. If you are unsure, you should ask one of our specialist family lawyers to review the order for you. They can look at the technical wording and advise you.
If you do not have a financial court order our family lawyers can help you obtain a financial court order to give you peace of mind. Your Will solicitor can then prepare a bespoke Will for you, confident in the knowledge that your ex-wife cannot make a claim or the risks of her doing so are reduced.
If you have a financial court order, but it is not a clean break order, our family law solicitors can advise on whether it would be sensible to ask the court to vary the order to make it a clean break order. Their advice will depend on your circumstances and those of your ex-wife.
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Does making a new Will prevent my ex-wife from making a claim on my estate?
If our Will solicitors make a new Will for you then an ex-wife could still bring a claim against your estate if there is no clean break order in place from the family court. A Will solicitor can advise on the prospects of an ex-wife successfully challenging your Will after your death. There are ways that you can minimise the risks of an estate claim or reduce the amount payable.
The law on your ex-wife making a claim on your estate
The law on people making a claim against your estate if you die without making a Will (called dying intestate) or die with a valid Will is contained in the Inheritance (Provision for Family and Dependents) Act 1975.
An ex-wife can claim against your estate if the intestacy rules or your Will does not make reasonable financial provision for her.
Reasonable financial provision depends on her and your circumstances. For example, your former spouse may rely on your spousal maintenance that ends on your death. Alternatively, your estate may be modest and you may have dependent children from your first and second marriages who need providing for.
The 1975 Act says that all the following people could bring a claim against your estate:
- Your husband, wife or civil partner – this includes someone who is separated but not divorced from you
- A former husband, an ex-wife or a former civil partner if there is no clean break order in place and if your ex-spouse or civil partner has not remarried
- A child or someone treated as a child by you
- Someone who was living with you for 2 years before your death
- Anyone who immediately before your death was financially dependent on you. For example, an unmarried partner
Worst case scenario, a current cohabitee, your children and an ex-wife could all be disputing who gets your estate. This level of conflict could be stopped or reduced with a Will prepared by a specialist estate planning solicitor.
For expert advice call our team of specialist divorce and estate planning lawyers or complete our online enquiry form.
