Intestacy rules & death during divorce - who inherits?

If someone dies without having made a will then their estate will pass by way of the Intestacy Rules.  The Rules set out in order of priority who is entitled to inherit the deceased’s estate dependent upon the category of individual left behind.  A spouse or civil partner will rank first in the order of priority and, depending upon whether the deceased had children who survived him, they will receive the lion’s share of the estate. But what if the parties were in the process of divorcing or dissolving their civil partnership at the time when one of them dies intestate? Would the surviving spouse or civil partner no longer be entitled to inherit any of the deceased’s estate under the intestacy rules?

 

Position if divorce finalised at the date of death

The intestacy rules will not apply if the divorce or dissolution order was made final before the death of the deceased. In such circumstances, the former spouse or civil partner will not be entitled to receive any share of the deceased’s estate save that they may be able to bring a claim under the Inheritance (Provision for Family & Dependants) Act 1975 (“the Inheritance Act”) on the basis that the law relating to intestacy is not such as to make reasonable financial provision for them. A more detailed analysis of the grounds for bringing a claim under the Inheritance Act and prospects of success thereof is outside the scope of this article.

The above position would also apply if a party had been granted a final decree of annulment.

 

Position if divorce not finalised at the date of death

If the divorce or dissolution order has not been made final before the death of the deceased, then the marriage will be considered to still subsist. That will be the case even if an initial conditional order has been obtained. The position will also apply to any annulment proceedings. If no final order has been made prior to the deceased’s death then the spouse or civil partner will be entitled to receive a share of the deceased’s estate pursuant to the statutory provisions of the intestacy rules, albeit the distribution would be subject to any claims made against the estate under the Inheritance Act by other parties – for example, the deceased may have been separated from the spouse or civil partner for some time period to his death and be cohabiting with another person. That person may well have a valid claim under the Inheritance Act.

 

Relevant case law

Several attempts have been made over the years to challenge the position regarding the applicability of the intestacy rules. In some cases, the spouse/civil partner wanted the intestacy rules to apply whereas in others they sought an order that they should be disapplied. In all cases, however, it was held the intestacy rules would apply if a final order for divorce or dissolution had not been made by the date of the deceased’s death. Some of the cases pre-date the lawful creation of civil partnerships but would apply by analogy as would any proceedings seeking an annulment – if the final decree had not been made by the time of the deceased’s death then the marriage/civil partnership would be found to still be subsisting.

In Stanhope v Stanhope [2013], it was held that where one party to a marriage had died after the decree nisi (now known as a conditional order) had been granted but before the decree absolute (now known as the final order) had been obtained, the divorce suit could not be revived for the purpose of issuing a decree absolute. Accordingly, the court declared that the marriage was still subsisting at the date of the deceased’s death and the surviving party could inherit the deceased’s estate as a spouse under the intestacy rules.

Likewise, in Seaford v Seifert [1968] a wife obtained a decree nisi in March 1965. On 5 July 1965 her solicitors filed an application with the court for the decree nisi to be made absolute. The application was submitted by post. At some point during the next night, the husband died. Unaware of the husband’s death, the court made the decree absolute the next morning. The court of appeal held that the decree absolute was a nullity – the wife was still married to the husband on his death and accordingly, was entitled to inherit his estate pursuant to the provision of the intestacy rules.

 

Conclusion

It is clear from the relevant case law that marriages and civil partnerships are likely still to be found to be in existence if a final order has not been made prior to the death of the other party to the relationship. Best practice for all individuals is to ensure that they have a valid will in place so as to avoid the Intestacy Rules applying upon their death but it is all the more important that this is done in circumstances where parties are married or have entered into a civil partnership but a final order has not yet been made.

If you are a spouse or civil partner with a potential claim against the estate of your deceased spouse or civil partner under the intestacy rules and wish to receive advice in relation to your potential claim, then please contact our dispute resolution team today on 0118 952 7206.