I divorced my ex-husband last November and he passed away three weeks later. I stupidly did it through the government website and got no advice.
We have been married 26 years and I am 51 now. We have a daughter who is 23 years old.
She was in full-time education until August last year, when she completed her masters, and intends to do her PhD once she has his estate in order.
Her father was a teacher and had been claiming a pension for the past 10 years. Can you please tell us if any of us are entitled to anything?
Surviving dependents after a divorce: who could inherit a pension in these cases?
This is Money’s Tanya Jefferies responds: I am very sorry to hear about this situation.
These are sad and complicated circumstances to find yourself in and it sounds like you have already realized your mistake in not consulting an attorney about your divorce.
This probably means you didn’t receive any financial settlement which would have made your position much clearer now.
Hopefully, even if it’s too late for you, other readers going through a divorce will see the benefit of getting your financial matters right with the help of an attorney.
We asked both a divorce attorney and an inheritance attorney to answer your question.
They explain the main steps you should take now, some of which you may have already done, but broadly they are as follows: check the exact status of your divorce when your ex-husband died; find out if he left a will, what it says and who the executor is; and contact the Teachers’ Pension Fund for information.
All of this will allow you and your daughter to discuss and ideally come to a mutual agreement on how best to handle your ex-husband’s estate.
Rosalind Fitzgerald, Legal Director at Rayden Solicitors, responds: I am sorry to hear about the passing of your ex-husband and that you are now concerned about your financial situation.
Rosalind Fitzgerald: You are not finally divorced if you have only received a decree nisi
Divorce: What stage were you at when your ex-husband died?
Firstly, was it definitely a decree absolute and not a decree nisi that you received last November?
The difference is important for inheritance purposes – you are not definitively divorced if you have only received a decree nisi, but a decree absolute means your marriage is 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 you finally got divorced before your ex-husband died, then I also assume that when you divorced online without legal advice, you didn’t reach a legally binding agreement on how to divide your finances.
This agreement should have been made into a court order, either before or after absolute decree, but before death. It would then have been enforceable against his estate.
Pension: what could you and your daughter inherit?
Regarding your ex-husband’s pension, you will need to speak to the system to determine if his dependents are entitled to post-death benefits.
If he was a member of the public sector teachers’ pension scheme, information on death benefits is available here.
It’s a shame you didn’t seek legal advice prior to your divorce because your ex-husband could have split a portion of the pension with you through a divorce decree, giving him income for the rest of your life would not have been lost upon his death.
The Estate: What are your rights as an ex-spouse?
What is a pension distribution scheme?
These are used to divide the retirement assets as part of a financial settlement in the event of a divorce, writes: This is money.
They are agreed on a “clean break” basis, allowing ex-spouses to get away with pensions they control from then on
As an ex-spouse, you may also be entitled to a fair financial provision of your deceased ex-husband’s estate under the Inheritance (Provision for Family and Dependents) Act 1975 if you were not properly provided for.
You will be treated by the court as a spouse and not as an ex-spouse if you bring the claim within 12 months of the death and have not remarried, and are then entitled to a higher financial benefit.
Your daughter can also make a claim if her father did not make sufficient financial provisions for her. The court will consider the extent to which your daughter was supported by her father at the time of his death in determining your entitlement.
You may want to negotiate with the beneficiaries about the allocation from his estate and if that is just you and your daughter hopefully you can come to an agreement between you.
Samantha O’Sullivan, Associate Solicitor for Estate Planning at Parker Bullen, responds: What a horrible situation to be in! But it shows me the reason why it’s important to keep one’s affairs in order.
The Will: Did your ex-husband leave one and who will inherit his estate?
Your ex-husband may have left a will. If he hadn’t revised it before his death, it probably would have ensured assets passed to you as his widow, or to your daughter otherwise.
Any gifts to you in his will would have been automatically canceled when an absolute decree was issued, meaning his estate would pass to your daughter.
Samantha O’Sullivan: Any gifts to you in a will would have been automatically canceled when an absolute decree was made
But if he had made you his executor, that appointment would not have been cancelled, so you are still responsible for administering his estate.
Since your daughter is of legal age, you and she can agree to divide your assets however you wish.
Provided that you come to an agreement between yourself and are recorded in a formal document (usually called a “deed of change”) within two years of your ex-husband’s death, the division will not have any adverse tax consequences for your daughter.
If he dies intestate, his estate would pass to your daughter (I assume she is his only child) and she would effectively have to assume the role of executor.
If she feels this would be too difficult or embarrassing for her, she could appoint someone else – including you, but possibly a completely independent person – to take over her responsibility.
However, even here, you and she can agree to divide any assets she receives as you see fit, using a deed of amendment to avoid paying taxes.
It is of course possible that your ex-husband made a new will before his death, and that will could exclude you and your daughter from any benefits.
Making a Claim: Can You Challenge the Will to Financial Aid?
I think one of your problems is probably that, even though you went ‘unmarried’ before his death because you didn’t take advice, you probably haven’t sorted out the financial side of things.
What does it entail to be an executor?
Fortunately, there is a possible solution to this: the Inheritance (Provision for Family and Dependants) Act 1975 (the “Family Provision Legislation”) gives certain categories of people – including the widow, a former spouse and a child of the deceased person – the right to a contesting a will if it does not provide for adequate financial provision for them.
For example, if your husband left everything to a charity, you and/or your daughter can apply to the court to review his will so that it can effectively settle the financial settlement that would normally be awarded in a divorce, even after his death.
You would have the same rights to challenge the fact that your ex-husband failed to provide for you financially if you and your daughter could not agree on the division of assets if she inherited his estate by will or statutory inheritance.
Since – technically – a claim under the Family Benefits Act would be made against the executors of your late husband’s estate, it is probably best that neither of you take on the role of executor when there is an opportunity to claim your late husband’s estate You would effectively be trying to sue yourself!
How to find legal help
We explain ways you can reduce, defer, or pay for your legal fees in a divorce when you have little or no money here. People who have suffered abuse may be entitled to legal aid.
The Bar Association has a search tool to help you find lawyers specializing in family, inheritance and other issues.
There is a filter to narrow your search to local law firms that handle legal aid funded cases.
A free guide for estranged couples navigating their divorce finances is available from the charity Law for Life.
A Survival Guide to Pensions on Divorce is available for download here.
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My husband died shortly after our divorce: who inherits his pension?
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