Lawyers advise separated couples to get their affairs in order to prevent any unpleasant disagreements after death, as divorce rates have returned to their pre-pandemic levels
Attorneys are cautioning divorcing couples' families that their ex-spouses may exploit a frequently disregarded legal loophole to claim an inheritance against their estate after they pass away, even years after the split.
The most recent statistics show that divorce rates in England and Wales are back to their pre-Covid levels. In 2023, there were 1,138 dissolutions of civil partnerships and 102,678 divorces.
The introduction of no-fault divorce in 2022, which made it easier to legally separate without a fight, caused a hump in divorce rates resulting in a 28 percent increase between 2022 and 2023. In opposite-sex couples, the average marriage lasted 127 years before ending in divorce.
Because fewer people now see the advantages of marriage, there are generally fewer divorces. However, the percentage of marriages ending in divorce is higher than it has ever been. Based on official data, slightly more than a fifth (22.8%) of 1963-married couples got divorced before their 25th wedding anniversary. This increased to 40.7 percent of 1998 marriages.
The legal framework that permits an ex-spouse to request "reasonable financial provision" from a deceased person's estate, even years after a divorce has been finalized, should be known by everyone, according to law firm DMH Stallard, since divorce is so common.
"Many people believe that their ex-spouse has no more claim to their assets after a divorce is finalized," stated Cathyrn Culverhouse, a partner at DMH Stallard. People must, however, review and update their estate planning documents to reflect their current wishes because the Inheritance Act of 1975 gives them a legal way to do so.
How can my ex-partner make a claim on my estate?
The Inheritance (Provision for Family and Dependants) Act of 1975 normally requires those who wish to obtain "reasonable financial provision" from a deceased person's estate to file a claim.
In the event that the will or intestacy laws do not provide for them, this enables certain people who were financially dependent on the deceased or who had other close relationships with them, such as a former spouse, to petition the court for financial support from the estate.
DMH Stallard's legal experts state that a claim under the 1975 Act needs to be filed within six months of the probate grant being given.
With the exception of a maintenance claim made between the date of death and the date of remarriage, an ex-husband or ex-wife's claim for a monetary settlement from the estate will be rejected if they remarry.
"The financial and emotional ramifications of a post-death claim can be devastating for the surviving family," stated Gonzalo Butori, senior associate at DMH Stallard. We suggest that being proactive can help safeguard an estate and lower the possibility that a former spouse will successfully pursue a claim.
How to safeguard your possessions during a divorce.
1. Make sure your divorce is finalized and that a clean break financial order is included.
You stay married until the decree absolute is issued, which gives your ex-partner additional rights over your property. Furthermore, unless a clean break financial order was established at the time of the divorce, the court will not have taken the spouse's financial needs into account, so they cannot make a claim later.
Partner at DMH Stallard Cathryn Culverhouse stated, "Your ex-spouse may be able to bring a claim against your estate for financial provision if you die before that happens."
2. . Include a no-claims clause in your divorce agreement.
Culverhouse stated, "The most crucial thing you can do in the case of an ex-spouse is to include a specific clause in your divorce order that specifically excludes claims against your estate."
This, if included, will shield your estate from any claim an ex-spouse may make under the Inheritance Act of 1975.
3. Establish a will.
To make sure your will is legitimate and accomplishes your goals, it is worthwhile to obtain appropriate and qualified legal counsel when drafting it. This will give your executors your wishes and the legal authority to carry them out. In the event that solicitors prepared the will, they ought to have a file of documents outlining your instructions that they can use to protect themselves against any claims.
"Your estate will be managed in accordance with the intestacy rules, a statutory framework that specifies who benefits first based on their legal relationship to you, if you do not leave a will. This may not suit your wishes. Moreover, the court will not be aware of your desires," Culverhouse stated.
4. . Wishing letter.
A letter of wishes explaining why you have decided to benefit some people and not others should be included with your will. Although it isn't legally binding, this is a helpful document that you can use to support any argument you make.
5. . Talking.
Clear communication with both the beneficiaries and those who might not benefit from your estate can frequently lower the likelihood of a claim, though it is not always feasible or easy to accomplish.
According to Culverhouse, this enables you to resolve any disputes while you are still living and to provide justification for your choices. This can also be included in the will if it is done in writing to demonstrate that they knew what they would receiveor not, depending on the situation.
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