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What happens if my partner dies before we are divorced?

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partner dies before divorce

Divorce proceedings can be stressful and complicated at the best of times. When a partner dies during the proceedings it can be incredibly difficult and lead to uncertainty in an already stressful situation.

Here we answer many of the questions that arise in this situation.

What happens if my partner dies during the proceedings?

This all depends on how far the proceedings have reached and whether the Court has issued a Conditional Order (formerly known as Decree Nisi) or a Final Order (formerly known as Decree Absolute).

If your partner died before the Final Order had been issued by the Court, then the Court will dismiss the application for divorce and the matter will proceed no further.

If your partner died after the Court issued the Final Order, then the marriage had already been dissolved and the proceedings come to an end.

Am I automatically divorced if my partner dies?

No, divorce only takes place when the Court issues the Final Order (formerly known as Decree Absolute).

If your partner dies before the Court issues the Final Order (formerly Decree Absolute) then the Court will simply end the proceedings as there is no longer a marriage to dissolve.  In this case you will legally be a widow/widower and free to remarry if you should so wish.

Will my partner’s death affect the financial proceedings?

Your partners death will bring the divorce to a conclusion, but the financial aspects of the divorce can depend on what stage of the proceedings you were at when they died.

If a Final Financial Order has been issued, then the surviving party can rely on it to make a claim against your partner’s estate for payment of what the Order says you are to receive.  You will not be entitled to make any further claim against your partner’s estate once payment has been made complying with the terms of the Order.

If your partner dies before the Court has issued the Final Order in financial proceedings, then it will not be binding on the other party.  This is where issues become more complex.  Even if you had an agreement as to the terms of the Final Order, without it being issued by the Court, there is not formal debt that can be enforced.

My partner has not left a Will, will I inherit?

If the Court has not issued the Final Order, then you would be legally the widow/widower and if your partner has not left a valid Will, then they will have died intestate.  This means that the law states who is to inherit and this is usually you, please refer to our intestacy chart below.

My partner has left a Will, can I do anything?

If your partner has left a Will, then they have stated where they would like their assets to go to.  For many this should be honoured, and they usually give strong reasons for leaving you out of the Will.

However, if there has not been a Final Financial Order and you believe that there has been a lack of sufficient provision for you, then you could look to apply to the Court under the Inheritance (Provision for Family and Dependents) Act 1975.  The Court will look at the whole circumstances of the matter and decide what provision should be made, if any.  These claims should not be undertaken lightly as you run the risk of being personally liable for the costs of the claim, if unsuccessful.

If you are affected or need help and advice then please contact our Family Department for expert advice.

Ginette McCaffery – Specialist Wills, Probate & Trusts Solicitor

This article is dated: 13.12.2023

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