I divorced my ex-husband last November and he died three weeks later. I foolishly did it through the Government website and didn’t receive advice.
We had been married for 26 years and I am now 51. We have a daughter who is 23.
She has been in full time education until August last year when she completed a Masters and intends to study for a PhD once she has sorted his estate out.
Her father was a teacher and had been claiming a pension for the last 10 years. Could you please tell us if either of us might be entitled to anything?
Family bereaved after a divorce: Who might inherit a pension in these circumstances?
Tanya Jefferies, of This is Money, replies: I’m very sorry to hear about this situation.
These are sad and complicated circumstances to find yourself in, and it sounds like you have already realised your mistake in not consulting a lawyer about your divorce.
This probably means you didn’t get a financial settlement that would have made your position much clearer now.
Even if it is too late for you, hopefully others reading this who are going through a divorce will realise the advantage of getting financial matters properly straightened out with the help of a lawyer.
We asked both a divorce lawyer and a solicitor specialising in inheritance to answer your question.
They explain the main steps you should take now, some of which you may have done already, but they are broadly as follows: check the precise stage your divorce was at when your ex-husband died; find out if he left a will, what it says and who is executor; and contact the teachers’ pension scheme for information.
All the above will allow you and your daughter to discuss and ideally come to some mutual agreement on the best way forward in sorting out your ex-husband’s estate.
Rosalind Fitzgerald, legal director at Rayden Solicitors, replies: I am sorry to hear about the death of your ex-husband and that you are now worried about your financial position.
Rosalind Fitzgerald: You will not have been finally divorced if you only received a decree nisi
Divorce: What stage had you reached when your ex-husband died?
Firstly, was it definitely a decree absolute and not a decree nisi you received last November?
The difference is important for inheritance purposes – you will not have been finally divorced if you only received a decree nisi, but a decree absolute will mean that your marriage has legally ended.
The terminology changed in April this year with the introduction of no fault divorce, but your divorce will have used the old terminology.
Assuming that you were finally divorced before your ex-husband’s death, then I also assume that as you divorced online and without any legal advice, you did not reach a legally binding agreement about the division of your finances.
This agreement would have needed to have been made into a court order, either before or after decree absolute, but before the death. It would then have been enforceable against his estate.
Pension: What might you and your daughter inherit?
In relation to your ex-husband’s pension, you will need to speak to the scheme to determine if his dependents are entitled to any benefits after his death.
If he was a member of the public sector Teachers’ Pension Scheme then there is information available on death benefits here.
It is a shame that you did not take legal advice about the pension before your divorce, because your ex-husband could have shared a portion of the pension with you by way of a pension sharing order on divorce, which would have produced an income for you for the rest of your life that would not have been lost on his death.
The estate: What are your rights as an ex-spouse?
What is a pension sharing order?
These are made to divide retirement savings as part of a financial settlement in a divorce, writes This is Money.
They are agreed on a ‘clean break’ basis, so that ex-spouses walk away with pensions that they control themselves from then onwards
As a former spouse, you may also be able to make a claim for reasonable financial provision against your late ex-husband’s estate under the Inheritance (Provision for Family and Dependents) Act 1975 if you have not been adequately provided for.
You will be treated by the court as a spouse rather than a former spouse as long as you bring the claim within 12 months of the death, and have not remarried, and will then be entitled to a higher level of financial provision.
Your daughter can also make a claim if her father failed to make adequate financial provision for her. The court will consider the extent to which your daughter was being maintained by her father at the time of his death, in determining her claim.
You may wish to negotiate with the beneficiaries with regards to provision from his estate, and if this is just you and your daughter, then hopefully you can come to an agreement between you.
Samantha O’Sullivan, associate solicitor for estate planning at Parker Bullen, replies: What a horrible situation to find yourselves in! But it does highlight to me the reason that it’s important to keep your affairs in order.
The will: Did your ex-husband leave one, and who inherits his estate?
Your ex-husband may have left a will. Unless he revised it before he died, it would probably have provided for assets to pass to you as his widow, or otherwise to your daughter.
Any gifts to you in his will would have been automatically cancelled when a decree absolute was issued, meaning that his estate would pass to your daughter.
Samantha O’Sullivan: Any gifts to you in a will would have been automatically cancelled when a decree absolute was issued
But if he had made you his executrix, that appointment would not have been cancelled, so you are still responsible for administering his estate.
As your daughter is an adult, you and she can agree to divide assets been you however you want.
Provided anything you agree between you is recorded in a formal document (usually referred to as a ‘deed of variation’) signed within two years of your ex-husband’s death, the division will not have any adverse tax consequences for your daughter.
If he dies without a will in place (‘intestate’) his estate would pass to your daughter (I’m assuming she’s his only child) and she would effectively have to take on the executrix’s role.
If she thinks that she would find that too difficult, or too distressing, she would be able to nominate someone else – including you, but potentially a completely independent person – to take over the responsibilities from her.
However, again, you and she can agree to divide between you any assets she receives however you want, using a deed of variation to avoid tax being payable.
It’s obviously possible that your ex-husband made a new will before he died, and that will might exclude you and your daughter from any sort of benefit.
Making a claim: Can you challenge the will to get financial support?
I think that one of your problems is likely to be that although you got ‘un-married’ before he died, as you didn’t take advice, the financial side of things probably wasn’t sorted out.
What does being an executor involve?
Executors are typically trusted friends or relatives who are tasked with sorting out a will after someone’s death, including doing the administration and distributing assets to beneficiaries, writes This is Money.
Read more on the duties here, and how to renounce the job here.
Luckily, there is a possible solution to this: the Inheritance (Provision for Family and Dependants) Act 1975 (the ‘Family Provision Legislation’) gives specified categories of people – including the widow of, a former spouse of and a child of the deceased person – the right to challenge a will if it does not make adequate financial provision for them.
If your husband, for example, left everything to a charity, you and/or your daughter could make an application to the court for his will to be reviewed, so that effectively the financial settlement which would normally be awarded on divorce can be sorted out even after his death.
You would have the same rights to challenge the fact that your ex-husband has made no financial provision for you in the event that you and your daughter could not agree about how to divide assets if she inherits his estate under his will or an intestacy.
As – technically – a claim made under the Family Provision Legislation would be made against the executors of your late husband’s estate, if making a claim is a possibility, it is probably best for neither of you to take on the role of executrix, as otherwise you would effectively be trying to sue yourselves!
How to find legal help
We explain ways to reduce, defer or pay your legal fees in a divorce if you have little or no money here. People who have suffered abuse may qualify for legal aid.
The Law Society has a search tool which helps you to find solicitors specialising in family, inheritance and other issues.
There is a filter that allows you to narrow your search to local firms that take cases funded by legal aid.
A free guide for estranged couples needing to sort out their finances in divorce is available from the charity Law for Life.
A Survival Guide to Pensions on Divorce can be downloaded here.