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Death during divorce is an unfortunate circumstance that can complicate an already lengthy and complex process. When one or both parties involved in a divorce pass away before the divorce finalises, it can create a whole range of legal and financial issues.
As it can become quite technical, it’s best to seek legal advice from an experienced family solicitor. To help shed some light on the topic, this blog will discuss what happens when a spouse dies during divorce and what options are available to you.
If you need advice from an expert family law solicitor, call us directly on 0203 007 5500 or send an enquiry to [email protected]
What happens if a spouse dies during divorce proceedings?
When a spouse dies during the divorce process, the situation depends on whether the court has issued a Conditional Order (previously called a Decree Nisi) or a final order (previously called a Decree Absolute).
If a spouse dies before the Conditional Order, the court will dismiss the application since it cannot issue a Conditional Order in the absence of both parties. However, if the court issues a Conditional Order and the deceased spouse hasn’t applied to have it set aside, it will become a Final Order.
When a party dies after the court issues the Final Order, the marriage automatically dissolves. Because of this, proceedings then come to an end.
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How does it affect financial proceedings?
The effect that a spouse’s death with have on financial proceedings during divorce will depend on the stage you are at. Primarily, this differs depending on if the court has yet to issue the Final Order:
Before the Final Order is issued
The court cannot enforce most financial proceedings until they issue the Final Order. Therefore, if a spouse dies before the Final Order, it is then not binding on the other party.
If inadequate provisions have been made, the surviving spouse can make a claim under The Inheritance (Provision for Family Dependants) Act 1975. The Inheritance Act 1975 gives spouses, former spouses, and children the right to claim a monthly sum from the estate of the deceased. This is only if the deceased spouse was financially maintaining them at the time of their death.
However, the court has the power to terminate the right to make claims in the future when hearing the financial claims during the divorce. In such cases, the court will consider relevant circumstances, such as the deceased party’s assets and liabilities, and the impact of the death on any financial orders made in the proceedings.
After the Final Order is issued
When a party dies after the court issues the Final Order, any financial orders made prior to the death are binding on the deceased’s estate. If the order includes a lump sum payment, it becomes a liability of the estate.
If there is a claim for periodical payments but the order does not specificy this to cease on the death of the payer, the receiving party may have a viable claim under The Inheritance Act 1975.
For scenarios where there is no financial order when a party dies, the surviving party cannot bring a claim for financial orders. They also may not inherit under a will and the intestacy rules.
Any financial claim would have to be made under The Inheritance Act 1975, but being an ex-spouse would limit such a claim.
What should I do if my spouse dies during divorce proceedings?
If your spouse dies during the divorce proceedings, take the following steps:
- Inform the court immediately. Notify the court of your spouse’s death and request that the divorce proceedings require a dismall. You need to inform the court of the death to take appropriate action.
- Obtain a copy of the death certificate. You will need to present a copy of your spouse’s death certificate to the court.
- Review any financial orders made. In reviewing any financial orders made, you should consult with a solicitor to ensure that any relevant financial matters are taken care of. This may include reviewing any existing property or financial agreements and ensuring that you’re protecting your interests.
- Consider your inheritance rights. It is important to understand your inheritance rights in the event of your spouse’s death. This may involve reviewing any existing wills or trusts to determine whether you are entitled to any assets or property.
- Seek emotional support. Losing a spouse can be a difficult and emotional experience. It is important to seek support from family, friends, or a professional counsellor to help you through this difficult time.
If you need legal advice from an experienced family solicitor, call us directly on 0203 007 5500.
How can Britton and Time Solicitors help?
We know how stressful divorce can be, let alone when a death occurs too. If you need help with an expert family solicitor, we can help.
To arrange your initial consultation with one of our solicitors, simply call us on 020 3007 5500.
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