A spouse whose marriage ends in death must not be in a worse position than one whose marriage ends in divorce

Many people are disappointed with the level of provision made for them by their deceased spouse. One option that ought to be considered by the surviving spouse is a claim against the estate for financial provision made under the Inheritance (Provision for Family and Dependants) Act 1975.

The Court is not obliged to comply with the wishes of the Deceased as expressed in the Will or the intestacy rules if no Will has been made. The Act provides the Court with an opportunity and a power to vary the distribution of an estate in the applicant's favour. The wishes of the Deceased are but one factor for the Court to consider and are not of magnetic importance.

The Legal Position

There are two questions that the Court will need to decide:

1. Did the deceased fail to make reasonable financial provision for their spouse?

2. If so, what reasonable financial provision ought to be made for the spouse?

The matters that the Court will have regard to when answering these two questions are:

• The financial resources and needs that the Claimant has or is likely to have in the foreseeable future.

• Financial resources and needs of other applicants.

• Financial needs and resources of the beneficiaries of the Estate.

• Obligation of the Deceased towards the Claimant.

• The size and nature of the Estate.

• The Claimant's physical and mental disabilities or any beneficiary of the Estate.

• Any other matter which the Court might consider relevant, including the conduct of any party.

There are also additional matters that the Court must consider as follows:

• The age of the Claimant.

• The duration of the marriage.

• The Claimant's contribution to the welfare of the family.

Higher Standard of Provision

The surviving spouse is in a stronger position than other people who can bring a claim under the Act. This is because they do not need to persuade a court that they have a maintenance need. The court can make an award which is not limited to what is needed to meet the spouse's maintenance needs. The Act provides for a higher standard of provision to be made, namely such financial provision as it would be reasonable in all the circumstances of the case for the spouse to receive.

The Divorce Cross Check

Crucially, the Court will consider what provision would have been made for the surviving spouse if the marriage had ended in divorce instead of death. This is known as the divorce cross check. It does not set a minimum or a maximum award the spouse can expect to receive. Having said that, there is often a strong argument in cases under the IPFDA to make greater provision for a surviving spouse than they would have received on a divorce because there is only a need to make provision for one spouse unlike in divorce where the matrimonial assets must be shared between two people.

Matrimonial Assets

Provision is normally made from the matrimonial assets in the first instance. These are assets that were acquired during the marriage. However, the longer a marriage the more likely that assets which would otherwise be designated as non-matrimonial assets will be treated as matrimonial assets capable of being utilised to make provision for the surviving spouse. It is well established that the relevance of the origin of assets diminishes over time. As the duration of a marriage increases, the courts consider that the non-financial contribution of the poorer spouse will have increased, so the scales of the contribution by each partner to the marriage will be better balanced. This is especially the case in respect of the matrimonial home which is an asset with special status and generally the court will apply the sharing principle to it so that each spouse will be deemed to have shared ownership of the matrimonial home even if it is registered in the name of the deceased alone.

Key Principles

The decisions of the courts in respect of claims by spouses under the IPFDA 1975 are heavily influenced by the decisions of the family courts in matrimonial proceedings. Marriage is now regarded by the Courts as an equal partnership and the division on breakdown must be conducted on the basis of fairness and non-discrimination. The emphasis is upon equality of division. Three principles are relevant to the court's determination:

1. Financial need - this is the first call upon the available property and often exhausts it with no surplus available about which arguments can ensue.

2. Compensation - this will be the first call on any estate surplus after financial needs has been met. This is aimed at redressing any economic disparity between the parties arising from the way they have conducted the marriage e.g. the surviving spouse may not have been allowed to work or worked on a part-time basis to meet family responsibilities. As a result, their financial resources are less than those accumulated by the deceased. They are entitled to be compensated for this.

3. Sharing - the fruits of the marriage. This is only applied if there is still property available after the first two have been satisfied.

What award can a Claimant ask the Court to make?

The Court has a power to award a lump sum, make periodical payments or transfer property. Claims brought by spouses are often needed to meet housing needs, care needs and/or to sustain the standard of living that was enjoyed by the surviving spouse during their marriage to the deceased.

What can Forbes Solicitors do for you?

If your spouse or partner has recently passed away without making sufficient provision for you in their Will, then we may be able to help you seek an award for reasonable financial provision.

The Contentious Trusts and Probate Team at Forbes have a wealth of experience of dealing with these types of claims. This is all we do. We act for individuals across the country and are committed to practising those things that constitute good service from a client's perspective:

• We are accessible and responsive.

• We always push the case and tell the client.

• We stick to agreed deadlines and timings and do things within a reasonable timescale.

We offer a range of price and payment options so that you can choose the one that best suits you including our acting under a no win, no fee agreement (CFA agreement).