Divorce Proceedings And The Death Of A Spouse

The outcome of a spouse dying during divorce proceedings will depend entirely upon the stage in which the divorce has reached. Speaking in the general terms of divorce, parties are not legally divorced until the Final Order (also known as the Decree Absolute under the former divorce law). If a spouse has died prior to this being granted by the court, they shall remain married in the eyes of the law, and the divorce proceedings cannot continue any further. The outcome of the death of a spouse, including what should happen to their assets, will also depend on whether the court has granted a Financial Order, either by way of a prior agreement between the parties or following contested financial proceedings.

If a Financial Order has not yet been granted by the court, and one party dies, the surviving spouse will be treated as though they are widowed. Any settlement that they may have reached prior to the death, will not be upheld, in lieu of the legally binding order. Any assets owned by the deceased spouse will pass under the terms of their will, or if they did not have a will, under the rules of intestacy. It is, therefore, especially important to keep your will under review where divorce proceedings have been commenced, and where your spouse is named as a beneficiary.

Claiming under the Inheritance Act 1975

Under these circumstances, the surviving spouse may wish to make a claim under the Inheritance Act 1975, where they believe they have not been sufficiently provided for under the deceased’s will, although the outcome of such is dependent on a number of factors which the court may consider, such as the duration of the marriage and the financial contributions made by the deceased spouse to the surviving spouse. There is, therefore, no guarantee of a successful claim.

Alternatively, if the court has granted parties a Financial Order and a Final Order (legally bringing the marriage to an end), but the financial aspect of the Orders have not yet been implemented, the surviving spouse would have options as to ensuring the settlement is upheld. A Financial Order which has been granted by the court is legally binding and therefore must be carried out despite the death of a party. The executors (or personal representatives where there is no will), are responsible for the payment of any debts from the estate, and as such, the surviving spouse would need to look to the estate of the deceased party to implement the terms of the Order.

The ability for the surviving spouse to recover their finances under the terms of an Order, from the deceased party’s estate, will also depend on the type of remedy provided for in the Financial Order. For example, lump sums and orders for the sale of property can be recovered from the deceased’s estate, whereas periodical payments cannot continue upon the death of the spouse.

It is therefore imperative to seek the necessary legal advice whereby one party may be facing the end of their life during the process of divorce so that the necessary safeguards can be put in place to protect their, or their spouse’s, financial position.