Inside the Inheritance Act
To mark the 50th anniversary of the Inheritance (Provision for Family and Dependants) Act 1975 receiving Royal Assent on 12 November 2025, Hayley’s specialist Consultancy Team are publishing a series of articles called, ‘Inside the Inheritance Act’, to provide clients with an insight on how the Inheritance Act works.
In this piece, we look at the legal standing for a former spouse (or civil partner) to bring a claim under the Inheritance Act.
What is the Inheritance Act?
The Inheritance Act provides a mechanism for certain categories of individuals to seek ‘reasonable financial provision’ from the estate of someone who has died where their Will (or the intestacy rules) fails to provide that provision.
Former spouses (and civil partners) are one such category.
Who Qualifies as a former spouse / civil partner of the deceased?
Former spouses are explicitly included in the class of potential applicants under the Inheritance Act and section 1(1)(b), defines them as:
‘a former spouse or former civil partner of the deceased, but not one who has formed a subsequent marriage or civil partnership’
Contrary to a common misunderstanding of the Inheritance Act, it is not a requirement for these applicants to evidence that they were financially dependant in any way upon the deceased for them to be eligible to bring a claim against the estate.
A former spouse is defined as someone whose relationship with the deceased was terminated during the deceased’s lifetime by a Final Order dissolving the marriage (formerly known as a Decree Absolute). For a former civil partner this is a Final Order dissolving the civil partnership. It also applies to former spouses by way of a Final Order of annulment of the marriage and those with a Nullity of Marriage Order.
A further requirement for eligibility is that the applicant has not remarried (or formed a subsequent civil partnership). If you have, you will not be eligible to bring the claim.
This category of applicant would not include marriages/civil partnerships where a Conditional Order (formerly known as a Decree Nisi) has been obtained but not the Final Order (Decree Absolute) at the date of death. Those applicants would be eligible to bring a claim under section 1(1)(a) as a spouse/civil partner, despite the separation. See our separate article in the series for those applicants.
If a spouse/civil partner has a judicial separation order they would still qualify as a spouse/civil partner of the deceased under section 1(1)(a). However the standard of reasonable financial provision you receive may be impacted by the judicial separation order if it remains in force at the date of death given the nature of such an order is to have made financial provision for the relationship at that time.
An issue which otherwise eligible former spouses/civil partners also need to check is whether they are barred from bringing a claim under the Inheritance Act by reason of section 15/15ZA of the Act which prevents claims where their Final Order dissolving the relationship prevents the making of a claim after either party’s death. This is a standard clause inserted into most clean break divorce orders, so checking the terms of the order before considering making a claim is an essential first step.
How does the court then decide if a former spouse/civil partner should receive (increased) financial provision from the estate?
That will be decided by the judge weighing in the balance various factors under section 3 of the Inheritance Act. These are: (a) the financial needs and resources of the applicant (b) the financial needs and resources of any other applicant (c) the financial needs and resources of any beneficiary of the estate (d) any obligations or responsibilities the deceased had to make provision for the applicant (e) the size and nature of the estate (f) any physical or mental disability of the applicant or any beneficiary and (g) any other relevant matter such as conduct of the applicant, the deceased or another person.
In addition to those factors, when deciding a claim specifically for a former spouse/civil partner, the Court will also take into consideration under section 3(2): the age of the applicant and the duration of their marriage/civil partnership as well as the contribution they made to the welfare of the family with the deceased specifically stated to include contributions made by looking after the home or caring for the family. Any provision which the applicant received following dissolution of the relationship will clearly be a relevant consideration for the Court when determining whether reasonable financial provision has been made for the applicant.
What does reasonable financial provision mean?
Unlike spouses/civil partners, for applicants who are former spouses/civil partners they do not benefit from the higher standard of provision which the Court expects the estate to make for the applicant. Instead, the lower standard of reasonable financial provision is assessed for former spouses/civil partners; namely, what is reasonable in all the circumstances of the case for their maintenance (section 1(2)(b)).
The definition of “maintenance” has been determined by various cases as not requiring an individual to live on the breadline but also not providing for them to live in luxury. It often lies somewhere in the middle and is decided on a case by case basis.
The Court has broad powers to award appropriate remedies, including orders for periodical payments, lump sums, and the transfer of specific property to the applicant. In theory the Court has the power to redistribute the entirety of the estate in favour of the applicant if it deemed that to be reasonable financial provision for their maintenance, though this would be an unlikely outcome with successful awards normally being made for a lump sum payment to be made from the estate for the applicant and the remainder of the estate to be distributed in accordance with the terms of the Will or intestacy rules to the existing beneficiaries.
When considering the size of an estate the court has power to call assets back into the estate. Further details of these powers can be found in our dedicated article in this series titled, ‘Calling back assets into the estate under the Inheritance Act’.
When should Inheritance Act claims by former spouses be made?
The Inheritance Act imposes a time-limit (also called a limitation date) on starting these claims with the Court, which is six months from the date of the Grant of Probate / Grant of Letters of Administration. Whilst section 4 of the Inheritance Act permits the bringing of a claim after this time there are various factors which the court must take into account when deciding whether to allow applicants to do so and it can make the claim more difficult to succeed upon. For this reason it is important that you seek specialist legal advice upon your rights to bring a claim as soon as possible following the deceased’s death.
SBMB – Specialist Inheritance Act Consultancy Firm
If you require expert guidance on Inheritance Act claims by former spouses, please contact us for a free initial consultation to discuss your options and how we can help, including any funding arrangements that we may be able to offer (such as no win no fee).
Read more in the series: ‘Inside the Inheritance Act’.
For more from Hayley’s specialist Consultancy Team go to ACTAPS Consultancy Firm.
