Can my ex make a claim against my estate when I die?

Interesting question received recently:

In the Consent Order I am ordered to pay my ex-wife spousal maintenance of £0.01 per annum until, the death of my ex-wife, remarriage of my ex-wife or further order terminating payments.

My question is:

If I was to remarry in the future and die before my ex-wife, would she have any claim on my estate? This is obviously a concern of my current partner as she owns the home we live in together and is loath to allow my ex-wife claiming part of this (which she has rightfully bequethed to her two children) should I die. What are the chances of a successful claim?

And the answer:

Well, the answer lies partly with a statute called: The Inheritance Act (Provision for Family and Dependants) Act 1975 (I’ll just refer to it as the Inheritance Act!).

In theory, yes, your ex-wife can make a claim against your estate for so long as she has the benefit of her nominal (£0.01) spousal maintenance payments per annum.  I am presuming that the consent order did not dismiss her claims under the Inheritance Act (unlikely but I have seen it happen in badly drafted orders).  It does not matter if you re-marry, your ex-wife would still, potentially be able to make the claim.  However, as is clear from the consent order, she would lose the benefit of her nominal maintenance order if she re-marries, dies or you have a further order from the court (this would be a variation order).  If her nominal maintenance order came to an end in any of these circumstances then the ability to claim against your estate also comes to an end.

The odds of a claim?

Although I cannot (and do not) give specific advice on this blog, I would only observe that the nominal spousal maintenance payments were awarded to your ex-wife on divorce because she must have had sufficient income means of her own to not need more substantial payments from you.  The reality would therefore be that if you were to die, she would not suffer financially by losing the £0.01 per year.  She is therefore unlikely to be advised to make any claim against your estate.

But… if your ex-wife were to have the benefit of a varied maintenance order against you in the future, let’s say £5,000 per annum because of a change in her circumstances, then she may be advised to make a claim against your estate under the Inheritance Act.  The variables as to whether she would go ahead are numerous, not least the size of your estate. Incidentally, your present partner (and perhaps your future wife) will not have her capital assets exposed to your ex-wife’s claims under the Inheritance Act so long as they remain in her sole name, such as her property in which you both live.

A warning…

But just be aware of one little known feature of the Inheritance Act.   If, at the point of your death, your own a property jointly with your partner or future wife, and you were to die, then your share passes automatically to your partner/wife.  It becomes her property absolutely.  In those circumstances you might think the property would then be safe from your ex’s Inheritance Act claim.  But it is possible under an Inheritance Act claim to ask a court to bring back into your estate, the value of your share in that property so it can be the subject of a claim.  Not often used but available to the court if required to do justice to any claim.

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