Managing Director
Provira
If you’re halfway through a divorce, you probably already think of your husband or wife as your ex.
You may be living in separate houses, your finances might already be separate and you could be well into discussions about who keeps the house and how everything else will be divided.
Legally, though, there’s an awkward gap between deciding your marriage is over and actually being divorced.
Until you receive your Final Order – the document that officially ends your marriage – you’re still married. If either of you dies before that happens, it can change what happens to your money and property quite considerably.
Your divorce stops if one of you dies
If you or your spouse dies before the divorce is final, the divorce process comes to an end. It might sound obvious, but you can’t divorce somebody who has died.
The more complicated question is what happens to everything you were in the middle of sorting out. The house, savings and other assets don’t necessarily get divided in the way you’d been discussing, even if you’d already spent months working towards an agreement.
Instead, inheritance law can suddenly become part of the picture.
Your soon-to-be ex could still inherit from you
Starting a divorce doesn’t automatically remove your spouse from your will.
Say you wrote a will ten years ago leaving most of your estate to your husband or wife. You separate, start getting divorced and changing the will is one of those jobs you promise yourself you’ll get round to.
If you die before you do, that old will could still dictate where your money goes.
It’s why I’d put reviewing your will fairly high on the financial to-do list when you separate. You may decide you’re happy with it as it is, but you don’t want to find out too late that a will written when your circumstances were completely different is still deciding who inherits.
What if you don’t have a will?
This is probably the part that catches most people by surprise.
If you die without a valid will, legal rules decide who receives your estate. They’re known as the intestacy rules, but the important bit is much simpler: if you’re still legally married, your estranged husband or wife can still inherit.
In some circumstances, they could inherit everything. You could have been separated for a year, living completely separate lives and be months into the divorce process. As far as both of you are concerned, the marriage is over. But if the Final Order hasn’t been made, legally it isn’t.
The house can be different again
It’s also worth checking exactly how you own your home. If you own it together as joint tenants, your share will usually pass automatically to the other owner when you die, regardless of what your will says. If you own it as tenants in common, you each own a share that can be left to someone in your will.
You don’t need to know the ins and outs of property law. There’s one question I’d ask your solicitor: “If I died tomorrow, what would happen to my share of our house?”
That should quickly tell you whether there’s anything you need to change.
What about the financial settlement you were working towards?
This is another reason not to assume that everything you’ve already agreed will carry on as planned.
You might have spent months discussing the house, savings, pensions and other assets. Maybe you were expecting a lump sum as part of the divorce.
If your spouse dies before everything is completed, that agreement won’t necessarily go ahead in the way you expected.
Depending on how far things have progressed, you may need advice about whether you can make a claim against your spouse’s estate instead.
There are laws that allow certain people, including a surviving husband or wife, to make a claim if they haven’t been left with reasonable financial support. The details matter enormously here, so this is something I’d speak to an inheritance solicitor about rather than trying to second-guess what you’re entitled to.
A few questions worth asking now
Nobody going through a divorce particularly wants another list of admin to deal with. But while you’re talking about the house, savings and what happens next, I’d make sure you’ve covered what happens if one of you dies too.
Does your current will still reflect what you want? What happens to your share of the house? Are there pensions, life insurance policies or death-in-service benefits that need reviewing? And what would happen financially if either of you died before the Final Order?
Hopefully, none of it ever becomes relevant.
But while divorce naturally gets you thinking about what happens when your marriage ends, it’s worth remembering that, until you have that Final Order, legally it hasn’t ended yet.
About Steve Gauke
Steve Gauke is Managing Director of Provira, the UK’s leading specialist provider of probate finance. He joined Provira in 2022 and has played a central role in its growth, helping establish the business as the UK’s major provider of inheritance and estate advances for beneficiaries, executors and professional advisers.
