Death and Divorce- What are the Implications if one party dies during a Separation or Divorce?

Naomi Devlin, Associate Solicitor with Worthingtons Solicitors, who specialises in matrimonial and family law looks at the implications when one party dies in the midst of divorce proceedings.

For many couples separating, finality is only truly achieved upon the resolution of their finances before a Court and the granting of their Decree Absolute, the document which is issued by the court when divorce proceedings are completed. Most people believe that upon the granting of their Decree Absolute,  there are no further repercussions arising from their marriage breakdown and in many aspects, this is correct, for example, either party can remarry and in general terms, move forward with their lives. But many people are not aware that, unless you have a document severing your financial ties with your spouse, or an Order from the court determining the financial aspect of your marriage breakdown, this leaves open the possibility of one or other party making a claim against the other in the future in respect of any relevant finances, even after the Decree Absolute has been granted. This is why it is very important for any divorcing party to focus on dealing with their financial affairs, either by way of negotiating an agreement outside of the Court arena in the form of a Matrimonial Agreement, which may be approved by the Court by consent, or in the alternative, by issuing an application to the court to have those finances formally resolved by way of an application for Ancillary Relief.

If either party were to die before the granting of the Decree Absolute and before the finances have been formally resolved, the surviving spouse will still be a dependant for the purposes of inheritance, no matter how long the parties have been separated. It is therefore vitally important for any party going through a separation or divorce, even prior to reaching a financial settlement, that a Will is executed to reflect their change in circumstances and up to date wishes. Whilst there is still potential for a will to be contested on death, this at the very least creates a formal document clarifying your intentions.

It is then vitally important, if you wish to sever your financial ties that you do so by entering in to a formal process of negotiating a legally binding agreement, w or to issue an application to the court to have your finances determined by a Judge, if no agreement can be reached. 

At Worthingtons Solicitors, we have specialist lawyers in both Matrimonial Department working alongside the Probate Department in offering a complete service to our client to ensure their position is as best protected as it can be.   If you have any queries please feel free to contact [email protected] or contact us on 028 91811538 to discuss in confidence.