Claims under the Inheritance (Provision for Family and Dependants) Act 1975 for estranged spouses

Simone Gavioli

Article written by Simone Gavioli, Solicitor, Litigation

English law permits an individual to leave their assets to whomever they wish. That testamentary freedom is however curtailed to some extent by the Inheritance (Provision for Family and Dependants) Act 1975.

Let’s take the following fictional scenario.

  1. Fictional background

In 1994, Leonardo started a relationship a with a guy at university named Matthew (Matt). After university, Leonardo moved in with Matt at his house in Pimlico, London. Since Matt was earning significantly more than Leonardo, the couple agreed that Leonardo would take care of the house and their family life, while Matt would carry on working. They married in 2014 (the following analysis would still apply in the event that they had entered into a civil partnership instead of a marriage).

Through the years, Matt’s personal income increased significantly. Matt paid off the mortgage on his home and made several financial investments. Matt and Leonardo had made mirror Wills which left their estates to each other upon their death.

In December 2022, the couple decided to separate. However, they did not divorce. Matt moved on and started a new relationship with his new partner, Andrea.

In March 2024, Matt died in a car accident.  Prior to his death, he had made a new valid Will in January 2024. The new Will left his estate to Andrea and a financial gift of just £5,000 to Leonardo. Matt’s net estate was worth in excess of £600,000.

  1. Analysis of the fictional background

In the above scenario, unless challenged, Andrea would receive nearly the entirety of Matt’s net estate, whereas Leonardo would receive only a relatively small sum despite the length of their previous relationship.

In such circumstances, Leonardo might wish to consider making a claim pursuant to the Inheritance (Provision for Family and Dependants) Act 1975 (the “1975 Act”). This Act allows for certain categories of persons to pursue a claim against the deceased’s estate, if the Will (or intestacy, if there is no Will) fails to provide them with a reasonable financial provision.

In the case of a spouse, “reasonable financial provision” generally means such financial provision that it would be deemed reasonable having considered all the circumstances of the case.

In pursuing a claim, a potential claimant will have to meet the following tests:

a) Has there been a reasonable financial provision made by the deceased? If not:

b) What is the appropriate financial provision to award?

It should be relatively easy in the scenario above, for Leonardo to prove that no reasonable financial provision was made for him in Matt’s Will. However, the Court still retains a very wide discretion as to the amount of the appropriate award that should be made.

In Leonardo’s case, the 1975 Act provides that one criterion to consider is the sum that Leonardo would have received if he and Matt had divorced rather than the marriage being terminated by death (the “Deemed Divorce test”). The starting point for consideration is that there should be a 50/50 split for divorce and therefore there should be a 50/50 split of Matt’s estate. In this case an equal split would be £300,000, which is clearly more than the £5,000 that was gifted to Leonardo.

Although helpful for an estranged spouse, this factor is only one of several the Court must consider. It should be balanced with several other considerations and should not be given any greater importance. Other matters that a Court will consider include: the age and duration of the marriage, the contribution to the welfare of the family and to the management of any business.

Whilst Leonardo may indeed have a valid claim of at least 50% of Matt’s net estate, the Court could decide to grant him more or less, subject to the wider particular circumstances that existed.

For further information generally regarding claims under the Inheritance (Provision for Family and Dependants) Act 1975, please see our website page here. If you would like to discuss the contents of this article further or to discuss a particular matter, please feel free to email me or contact the Contested Probate team on 020 8858 6971.

Please note that this article does not constitute legal advice and is only provided for illustrative effect.