Death of Spouse or cohabitee during Separation

Separation and divorce is, to most people, an emotional and distressing experience. A sense of failure is often mixed with those of frustration, anger and sadness. Imagine, then, the feelings of someone in that position who, whilst experiencing separation, then has to deal with the death of their former partner before the financial and other practical arrangements have been made.

What follows is gender neutral and applies equally to both sexes.

Were the partners married or not?

As so often the legal position of the surviving partner depends on their former domestic partnership status.

Married

(i) Married partners who have separated but are not yet divorced.

There are two alternative possibilities:

(a) No formal financial arrangements as yet agreed

In this situation, it will be necessary to ascertain whether the deceased partner had made a will. If there is a will and if the surviving spouse is named as a beneficiary in the will, then that arrangement remains legally valid.

If the will left the whole of the state of the deceased partner to the survivor, then no further claims against the estate can be made for the obvious reason that the survivor will receive everything.

It may be necessary to investigate any pension plans and/or life policies held by the deceased, as sometimes a third party e.g. a child, can be mentioned in such arrangements as a beneficiary.

(b) Formal financial arrangements have been agreed but not converted into a court order (because the partners are not yet divorced).

      Although the parties came to an agreement, that agreement is not legally binding if the divorce has not been finalised. This means that in such a case, the survivor is not bound by the terms of the agreement, which may no longer be appropriate because of the death of the other partner.

For example, the proposed agreement may have anticipated that the now deceased partner would pay maintenance to the survivor. That obviously cannot now happen. The surviving partner may have to be advised whether or not to make a claim for support from the estate if no adequate provision has been made by the will of the deceased partner.

(ii) Formerly married partners who are now divorced.

In this situation, it is very likely that financial arrangements will have been made as part of the divorce.

That being so the survivor will not be able to challenge the arrangements unless

  1. It becomes clear that the deceased partner was less than frank about their financial position whilst dealing with finances in the divorce or
  2. The divorce agreement included a provision that maintenance would be paid during their joint lives. On the death of one of the partners that maintenance would cease and the survivor may be able to seek additional capital from the estate of the deceased partner to compensate for the loss of the maintenance.

In this situation, if the survivor is the carer for any children and they have not been provided for by the state of the deceased partner, a claim could also be made for the future support of the children.

Former partners who were not married

As is so often the case, the law in this situation is quite different to that which applies to those who were married.

The main point that needs to be emphasised is that in the absence of marriage, on separation, neither partner has an automatic right to seek financial support from their former partner.

Of course, if both partners were the owners of a property or other assets, then they will be shared according to the proportions in which they were owned.

In addition, as with formerly married couples, a surviving partner who was not married but had children with the deceased partner, can claim support for the children from the estate.

Conclusion

It can be seen that the situations described above (which are only an outline summary) are full of complications. Legal advice is very important because in some instances there are some tight legal deadlines for dealing with the problems.

If you or anyone you know, are affected by the issues raised above and would like more information or some preliminary, confidential advice, please contact one of our experienced experts in our family team by email or telephone. 

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