Inheritance claims by spouses

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Inheritance claims by spouses: Why spouses are in a strong position

 

For more information about inheritance claims by spouses and details of no win, no fee funding please call our free legal helpline for a case assessment on 0808 139 1606 or send details to us by email at [email protected]

 

This article focuses on claims by spouses (and civil partners). However, if you would like to know your rights as divorcee then this article here might be useful. Alternatively, if you would like to know more about your rights as a cohabiting partner you may find our article here useful.

Inheritance claims by a spouse

A spouse whose husband or wife has passed away can bring a claim against their estate under the Inheritance Act. This applies where the couple were separated or if divorce proceedings had started. There are even some specific circumstances where you can still bring a claim after a decree absolute.

Civil partners have the same rights as a spouse to bring a claim under the Inheritance Act and since the 2019 change in the law, permitting opposite sex couples to enter into civil partnerships in England and Wales, it is likely that more civil partners will bring claims under the Inheritance Act in the future.

The higher level of provision for spouses and civil partners

Once the court is satisfied you qualify to bring an Inheritance Act claim as a spouse or civil partner then the court will turn its attention to deciding whether “reasonable financial provision” has been made for you from the estate. If reasonable financial provision has not been made for you then the court can redistribute the estate in accordance with what it considers to be reasonable, regardless of the terms of the deceased’s will or the rules of intestacy.

Spouses and civil partners are in a strong position under the Act, benefitting from the fact that courts apply a higher standard of provision for them compared to other categories of claimant. That standard is ‘what is reasonable in all the circumstances of the case’ and is not limited simply to what they require for their maintenance.

The court will weigh up a number of factors when deciding what “reasonable financial provision” equates to, including your financial needs and resources, your health and any promises made by the deceased for you to receive an inheritance from the estate.

The longer the relationship and the more dependant you were upon the deceased the more likely the court will order substantial financial provision to be made for you from the estate.

You will need specialist advice on what you personally can expect to receive.

The Notional Divorce

A further specific factor which the court will consider when dealing with inheritance claims by spouses is the financial provision the surviving spouse would have received if, on the day of the deceased’s death, the marriage or civil partnership had instead been terminated by divorce or a dissolution order.

This is often referred to as the “notional divorce test” and has led to a lot of cases making comparisons to divorce cases (where a 50/50 division of joint assets is often discussed) to determine how much a spouse can expect to receive. However, this is very much a starting point for determining the provision to be made for a spouse or civil partner in an Inheritance Act claim as, for example, on death there is only one surviving person to provide for whereas on divorce there are two.

How we can help

For expert guidance on inheritance claims by spouses and how much money you can expect to receive then speak to our specialist inheritance team on our free legal helpline on 0808 139 1606 or send details of your case to us at [email protected]

We can often offer alternative funding for Inheritance Act claims, including No Win, No Fee agreements, which we can discuss in more detail as part of the free case assessment.