Life after death

3rd October 2014 | Written by Alan Foster

More and more of you are living together happily, having children and generally conducting your lives outside of marriage. What very few of you probably realise, however, is the possible consequences if there is an unexpected and untimely death of your partner if they have not made a Will. In this situation, it may place the survivor in a very difficult position, particularly in cases where the deceased partner held the major assets of your relationship in his or her sole name.

When you are both alive and well it probably doesn’t matter to you if, for example, the property in which you live is owned in one party’s name. However, if that person unexpectedly dies, the position could be more difficult than just the emotional aspect for you as the survivor for whom the question might be whether financially there is “life after death”.

Fortunately there is a potential remedy provided by the Inheritance (Provision for Family and Dependants) Act 1975. This gives some protection as the Act is designed to meet the needs of you as the survivor in these circumstances where it can be shown that a deceased partner hadn’t, for whatever reason, made sufficient financial provision for you (or for the children).

So who can claim?

A variety of people including:

  • the spouse or civil partner of the deceased;
  • the former spouse or former civil partner of the deceased, providing they have not subsequently married or formed a civil partnership;
  • a child of the deceased;
  • someone who had lived with the deceased for two years prior to his or her death as husband and wife in the same household (cohabitees);
  • a person who, immediately before the death of the deceased, was being maintained either wholly or partly by the deceased, i.e. financially supported by them.

What would you need to prove?

In short, the first question is whether the deceased had made reasonable financial provision for you. In assessing whether reasonable financial provision had been made, the Court would look at various criteria in assessing the claim which would include the following:

  • the financial resources and financial needs which you have or are likely to have in the foreseeable future;
  • the financial resources and financial needs which any beneficiary of the estate has or is likely to have in the foreseeable future;
  • any obligations or responsibilities which the deceased had towards you or towards any beneficiary of the estate;
  • the size and nature of the net estate of the deceased;
  • the physical or mental disability of you or of any beneficiary to the estate of the deceased;
  • any other matters, including the conduct of you or of any other person which in the circumstances of the case the Court may consider relevant.

If successful, the Court has various powers and can make provision for you to have maintenance and/or capital which could include the transfer of a property into your name.

What can be done to protect you?

First of all you can try to ensure that your partner has a valid Will and that provision is made for you in the event of his/her death. Couples are often reluctant to talk about what would happen if one of them died, but it really is in your interests to do so to avoid the survivor being put in financial difficulties and having to rely upon an application under the Act for financial provision. If in the unfortunate situation that your partner dies without having made a Will it is vital that you seek urgent legal advice. You must act quickly as there are important time limits in relation to any claims under the Act which generally need to be made within six months from the date of a Grant of Probate of your partner’s estate. The real key here is to discuss matters on an open basis with your partner whilst he/she is still alive!

For further information please contact Alan Foster – a member of the Association of Contentious Trust and Probate Solicitors (A.C.T.A.P.S) and Senior Partner in our Family team at our Uckfield office on 01825 744436 or email alanfoster@rixandkay.co.uk.