Death and divorce: joint lives maintenance

Death and divorce: joint lives maintenance

What this means is that the monthly maintenance would be paid with no specific end date and would only come to an end once one person had died, but it would automatically end if the recipient party remarried. Therefore, it was often the case that the person in receipt of the maintenance would never remarry.

Sonia Bachu, a legal director in our family team, and Debra Burton, associate in our contentious probate team, explores what this means when one of them dies.

If the first to die was the recipient of the maintenance, for example, the ex-wife, then the ex-husband would have no ongoing liability. On the other hand, if he were the first to die, complexities could arise.

If the ex-wife would suffer financial hardship as a result of the ex-husband’s death, she may have a claim upon the deceased ex-husband’s estate.

It is common to find a specific clause within a matrimonial Financial Order restricting either party from making claims against the other’s estate after death, however, if there is a joint lives maintenance order in place, then this is one of the rare occasions where that does not necessarily apply.

In this event, the receiver would be advised to pursue a claim under the Inheritance (Provision for Family and Dependents) Act 1975 – “the Inheritance Act”.  The Inheritance Act provides that certain categories of people, including former spouses who have not remarried, can apply to the court for “reasonable financial provision” from the deceased’s estate.

However, just because the receiver is eligible to bring an Inheritance Act claim, this doesn’t mean they will automatically get something from the estate. Usually there will be competing claims, possibly from a widow, whose claims the court are likely to prefer over an ex-spouse. The court will also be conscious that joint lives maintenance was only supposed to last until the death of one of the parties, and that the estate’s resources are limited.

When assessing what someone is likely to receive from an Inheritance Act claim, the court will consider a host of things, including the size of the estate, other beneficiaries, and the assets and resources of the ex-partner.

When a joint lives maintenance order exists, the provider’s estate is large and the receiver dependent, then the provider would be well advised to obtain an insurance policy to protect the periodical payments so that in the event of their death, the insurance policy would pay out a lump sum and prevent a claim being made against their estate.

For those who have a joint lives maintenance order in place, it’s important to take specialist legal advice.

Find out more about our family team here.