I didn’t get a fair share in my divorce and now my ex-husband has died: Can I still bring a claim?
My ex-husband has just died. When we divorced he hired a solicitor and I could not afford one. He tried to get me to sign a financial order or something but I refused.
During our 16 years together I worked part-time while he got a good career as a casino manager. I brought up his two children from his previous marriage.
I felt I didn’t get a fair share in the divorce even though we just split things. We didn’t discuss pensions.
He had recently remarried and had two young children. I presume she will get the mortgage paid off, his pension and life insurance from his job. Do I still have a claim?
Financial settlement: I didn’t get a fair share in my divorce and now my ex-husband has died (Stock image)
Tanya Jefferies, of This is Money, replies: It sounds as if you didn’t agree a final financial settlement with your late ex-husband when you divorced.
We asked a lawyer to explain what your options are now that he has died.
Laura Phillips, senior associate in the dispute resolution team at Kingsley Napley, replies: Your question suggests that you agreed to a 50/50 split of the marital assets.
I am not sure from the background you have provided whether the ‘split’ that you agreed with your ex-husband was a ‘final financial order’, meaning it was agreed and recorded by the court.
Laura Phillips: On someone’s death, pensions are dealt with in a slightly different way because they do not fall within that person’s estate
If you have not remarried (your question does not say but suggests you haven’t) and there is no court order dismissing your claims then you can still bring financial claims in relation to the marriage even after you have divorced.
Now that your ex-husband has died, however, any potential claims you have in respect of the marriage and divorce would have to be made against your ex-husband’s estate.
It is possible to make an application to court if you think you have not been left a reasonable financial provision from a person’s estate.
To be able to make a claim you have to ‘qualify’ as one of the categories of claimants (including a surviving spouse/child).
As a divorced spouse, you would have to show that you were still being financially maintained by your ex-husband at the time of his death (for example, because there was an on-going spousal support payment) in order to claim.
If there was no on-going support being paid by your ex-husband at the time of his death – your question suggests there was not because you say you just split things and don’t mention him paying maintenance for you – then it is probable you will not be able to claim against your ex-husband’s estate.
Did your ex-husband make a will?
STEVE WEBB ANSWERS YOUR PENSION QUESTIONS
If your ex-husband made a will during your marriage, it would have become automatically invalid on the marriage to his new wife.
If he has made a new will, it may be possible that he has left some provision for you. Given the fact you have divorced and he has two young children, it may be unlikely he will have left you any further assets.
However, it might be worth asking the executors of his estate to confirm the position.
If your ex-husband died without leaving a will, then as a result of your divorce you would not be entitled to anything from his estate under the intestacy rules in this country.
What about his pensions?
Although pensions can be considered as an asset of the marriage, that does not necessarily mean that one party is entitled to a proportion of those.
On someone’s death, pensions are dealt with in a slightly different way because they do not fall within that person’s estate. They are dealt with by the trustees of the relevant pension schemes, who use their discretion to decide who to award the pension to.
If your ex-husband completed an ‘expression of wishes form’, this would usually guide the trustees as to whom they should make a payment to.
If there is no such form, then the trustees can consider the needs of all the dependents and make a decision.
You may be able to write to the pension company setting out why you think you should receive some of your ex-husband’s pension but I note that he has four children (including two young children) and is currently married.
In those circumstances, it is likely that the trustees would consider that any children (particularly if they are children under 18) should get priority.
What action can you take now?
In short, I’m sorry but I think it is unlikely that you could claim anything from your ex-husband’s estate unless you were still being maintained by him, perhaps by way of maintenance payments being made to you.
I suggest you check whether any provision has been made for you in any will he has made since remarrying and also contact his pension trustee to see if any share of his pension can be awarded to you.