Can I make an inheritance claim if I am divorced or getting divorced?

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A common question our contested probate lawyers get asked is, ‘Can I make an inheritance claim if I am divorced or getting divorced?’

When a couple divorce a formal court order is often put in place that prevents an Inheritance Act claim being made by one ex-spouse against the estate of the other.

If such an Order has not been made, or if death occurs before the decree absolute has been granted, then the surviving spouse will be free to make an Inheritance Act claim if they wish to do so.

The law can take people by surprise. It is often assumed that if a couple have divorced, or are going through the process of divorce, then they should not be entitled to make a claim on each other’s estates, but that is not the case. The Inheritance Act allows claims to be made by spouses even if they are separated, and ex-spouses – as long as they haven’t remarried.

However, if an Inheritance Act claim is made in these circumstances then one of the factors that the court will take into account is the extent to which a financial resolution has already been reached between the couple, pre or post decree absolute.

If a divorce order explicitly rules out a claim, that will generally mean the surviving spouse will be unable to seek provision under the Inheritance Act. However, complications can arise, such as where a divorced couple gets back together after their divorce has gone through. In this scenario a claim can be considered on the basis that the couple are cohabiting, which is one of the grounds entitling someone to bring an Inheritance Act claim, regardless of what the order said on divorce.

So if you have been left wondering, Can I make an inheritance claim if I am divorced or getting divorced? the best advice is to speak to a specialist inheritance lawyer. but it is important that you do this without delay as the law only allows a period of six months from grant of probate in which to commence a legal action.

Give the experts a call on 0808 139 1606 or send brief details to us by email at [email protected]