Can I still make a claim against my ex-husband after death?

I didn’t get a fair share in my divorce and now that my ex-husband has passed away: can I still make a claim?

My ex-husband just passed away. When we divorced, he hired a lawyer and I couldn’t afford one. He tried to get me to sign a financial order or something, but I refused.

During our 16 years together I worked part time while he got a good career as a casino manager. I raised his two children from his previous marriage.

I felt like I wasn’t getting a fair share of the divorce, even though we had just broken up. We didn’t talk about pensions.

He had recently remarried and had two young children. I assume she gets the mortgage paid off, his pension and life insurance from his job. Do I still have a claim?

Financial settlement: I didn’t get a fair share in my divorce and now my ex-husband has passed away (Stock Image)

Tanya Jefferies, of This is Money, replies: It sounds like you didn’t make a final financial settlement with your deceased ex-husband during your divorce.

We’ve asked a lawyer to explain your options now that he’s passed away.

Laura Phillips, senior associate in the dispute resolution team at Kingsley Napley, replies: Your question suggests that you agreed to a 50/50 split of the matrimonial property.

Based on the background you provided, I’m not sure if the “split” you agreed to with your ex-husband was a “financial decision” meaning it was agreed upon and recorded by the court.

Laura Phillips: When someone dies, pensions are treated differently because they are not part of that person's estate

Laura Phillips: When someone dies, pensions are treated differently because they are not part of that person’s estate

If you have not remarried (your question does not say but suggests not) and there is no court order to dismiss your claims, you can still file financial claims related to the marriage even after you are divorced.

However, now that your ex-husband has passed away, any claims you may have regarding the marriage and divorce must be filed against your ex-husband’s estate.

You can petition the court if you believe that you have not received a reasonable financial provision from the estate.

In order to make a claim, you must ‘qualify’ as one of the categories of claimants (including a surviving spouse/child).

As a divorced spouse, you would have to prove that you were still financially supporting your ex-husband at the time of his death (for example because there was an ongoing spousal maintenance) in order to be able to claim.

If ongoing support wasn’t paid by your ex-husband at the time of his death – your question suggests it wasn’t because you say you just took things apart and don’t mention that he paid alimony for you – then it’s likely you can’t claim your ex-husband’s estate.

Did your ex-husband make a will?

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If your ex-husband had made a will during your marriage, it would have automatically become invalid upon marriage to his new wife.

If he has made a new will, he may have left a provision for you. Given that you are divorced and he has two young children, it is unlikely that he left you any other possessions.

However, it may be worth asking the executors of his estate to confirm the position.

If your ex-husband died without leaving a will, then as a result of your divorce you will not be entitled to anything from his estate under the rules of the will in this country.

What about his pension?

While pensions may be considered an asset of the marriage, that does not necessarily mean that one party is entitled to a portion of it.

When someone dies, pensions are treated differently because they are not part of that person’s estate. They are handled by the administrators of the relevant pension schemes, who decide at their own discretion to whom the pension is awarded.

If your ex-husband filled out a “wish form,” it would usually help the trustees determine who to make a payment to.

If no such form exists, the trustees can consider the needs of all dependents and make a decision.

You may be able to write to the pension company explaining why you think you should receive part of your ex-husband’s pension, but I note that he has four children (including two young children) and is currently married.

In those circumstances, it is likely that the trustees believe that children (particularly if they are children under the age of 18) should be given priority.

What action can you take now?

In short, I’m sorry, but I think it’s unlikely you’ll be able to claim anything from your ex-husband’s estate unless you’re still being supported by him, perhaps through alimony payments to you.

I suggest that you find out if there is any provision for you in any will he has made since he remarried and also check with his pension administrator to see if any portion of his pension can be awarded to you.

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