FREE CHAPTER from ‘A Practical Guide to the Death of a Spouse During Divorce Proceedings’ by Chris Bryden


It is unfortunately the case that for numerous reasons a party to divorce proceedings may die. In such circumstances the legal process can be significantly complicated, and, depending upon the stage at which the party dies, different considerations or alternative remedies may need to be pursued. This can lead to significant frustration, wasted costs and confusion, as the remedies available cross over numerous different areas.

This is a practical guide to the main issues that arise when a spouse passes away, broken down into Chapters which cover the main situations that practitioners might experience. These fall into three main categories. The first relates to a death that occurs in the course of financial remedy proceedings, and considers the different stages at which such proceedings may be, as the timing of the death may have a significant impact upon the position that the surviving spouse is left in, as well as the remedies that they may be able to pursue (or which they may find are being pursued against them). The second relates to consequences of a death in respect of other property rights, in particular the operation of the doctrine of survivorship and of the Trusts of Land and Appointment of Trustees Act 1996. The third relates to potential alternative claims that can be brought by a spouse against the Estate of the deceased.

This guide does not however seek to deal with the situation whereby a spouse dies without there being any breakdown of the relationship. In such circumstances their Estate will pass by their will or under the Intestacy Rules, with any assets held as joint tenants passing outside of those provisions by virtue of survivorship. In the event that the surviving spouse is not properly provided for they may be able to bring a claim pursuant to the Inheritance (Provision for Family and Dependants) Act 1975. Whilst these principles are discussed in this guide, and the relevant law is applicable to those circumstances, its focus is on the death of a spouse during the course of financial remedy proceedings.

Thus, there is a cross over between various different areas of law: the Matrimonial Causes Act 1973 and related statutory provisions, including the Matrimonial Property and Finance Act 1984; the Trusts of Land and Appointment of Trustees Act 1996; and the Inheritance (Provision for Family and Dependants) Act 1975, amongst others. Different principles apply to each, and this guide is intended to give an introduction to each of these areas so that practitioners who find themselves in the position that the spouse on the other side has died, or their client has died, are aware of the major issues that they may face.

These issues will include consideration of the stage at which the financial remedy proceedings have reached, and whether enforceable orders have been made. They may include the need to bring civil proceedings, which may have short, strict deadlines (for example a claim under the Inheritance (Provision for Family and Dependants) Act 1975 must be brought within six months of the grant of probate or letters of administration unless the court gives permission for a claim to be brought out of time (section 4). They may also involve consideration of trust law and survivorship. The rise of blended families, second or further marriages, and the increase in wealth as a result of property ownership can add further and significant complications and the prospect of cross-claims which can make the position of the surviving spouse even more difficult.

It is also important to consider some other basics. Section 18 of the Wills Act 1837 provides that a will is revoked by the marriage of a testator, save that where it appears from a will that at the time it was made the testator was expecting to be married to a particular person and that he intended that the will should not be revoked by the marriage, the will shall not be revoked by his marriage to that person (subsection 18(3)). Further, by subsection 18(4), in the same circumstances if it appears that the testator intended that a disposition not be revoked by the marriage, it, and any other disposition, will also take effect unless it can be shown from the will that any disposition was intended to be revoked.

This can be relevant in divorce cases, as a party may not be aware that the effect of their marriage is that their will has been revoked. If they then die prior to a decree of divorce, and they have not made a new will, the provisions of section 46 of the Administration of Estates Act 1925 (commonly known as the Intestacy Rules) will apply. This will mean that the Estate will devolve on specified statutory trusts, meaning that if there are no children the Estate will pass to the spouse, even if there has been a long estrangement. If there are children, the spouse will receive a fixed sum (£322,000 as from 5 July 2023, increased from £270,000) plus half of the remainder, the other half going to the children. In circumstances where spouses have separated but not divorced a significant period of time prior, and the spouse who subsequently dies has formed a new cohabiting relationship, this can have a devastating effect on the cohabitee. In such circumstances the surviving spouse may well face a 1975 Act claim by the cohabiting partner, which can quickly lead to significant costs being run up. Checking the position of the client as to whether or not they have left a will, who the beneficiaries are under the will (as a new will post-marriage will, unless revoked, also remain valid if the party dies before the divorce is finalised) and advising them to consider making a new will, are important steps which are overlooked surprisingly often.

Section 18A of the Wills Act 1837 deals with the position whereby a testator has made a will and a court dissolves or annuls a marriage. In such circumstances, the will remains valid, but the former spouse is treated as having died on the date of the marriage or annulment. This means that if appointed as executor or trustee, a legal fiction is established that the spouse has died, and likewise any property left passes as if the spouse had died. This will often mean that a different beneficiary will inherit, but it will depend upon the terms of the will.

Consideration should also be had to whether or not, if a valid and subsisting will is found, the will is a mutual will. Where spouses are in the process of divorcing and change their testamentary provisions, and subsequently die before the financial remedy proceedings are concluded (and importantly, before Decree Absolute), it is worth checking whether an earlier will was executed on a mutual basis with the surviving spouse (who ought to be able to confirm this and produce their own will to this effect).

The concept of mutual wills is not restricted to spouses, though that is probably the most common circumstance in which they are executed. For mutual wills to exist, two or more persons must agree as to the disposal of some or all of their property on death, and execute wills pursuant to that agreement. That agreement must be intended to be irrevocable and be contractual in effect. Mutual wills should be distinguished from mirror wills – those which are simply in identical terms, as these do not take effect in the same way and are revocable by the testator. The effect of a mutual will in law is that the courts will give effect to the intention to create a mutually binding will by imposing a floating trust which becomes irrevocable after the death of the first testator and crystallises after the death of the survivor (see re Goodchild [1997] 1 WLR 1216). However, the doctrine of mutual wills requires both parties to execute wills, and is therefore different to a mere contractual agreement to leave an asset in a will.

In Legg and others v Burton and others [2017] EWHC 2088 (Ch) HHJ Matthews, sitting as a Judge of the High court, carried out a review of the mutual wills doctrine. He held that in order to succeed in a claim that a will falls within the equitable doctrine of mutual wills, and is accordingly binding on the estate of the testator despite a subsequent change in that will, the claimant must prove, on the balance of probabilities, that the testator made a legally binding agreement with the other testator that both would make their wills in a particular form (not necessarily the same) and that they would not revoke them or (depending on the terms of the agreement) change them without notice to the other or others sufficient to enable that other or others to change their own wills as well, that they made their wills in that particular form and that they did not revoke them (or change them without such notice), and the first of the testators to die did so, not having revoked (or changed) his or her own will.

The use of the phrase “legally binding agreement” demonstrates that there is a crucial difference between an obligation which is legally binding, and which will be enforced by the court, and an obligation binding in honour only. The latter may be called a moral obligation, or – as in some of the authorities – an “honourable engagement”: Lord Walpole v Lord Orford (1797) 3 Ves Jun 402, 419; Re Cleaver deceased [1981] 1 WLR 939, 947G.

The standard of proof is the ordinary civil standard of the balance of probabilities – re Cleaver and is on the party seeking to contend that wills are mutual wills. However, in Legg it was held that where a thing is inherently improbably, it takes more cogent evidence to persuade a court to find that the balance of probabilities does indeed lie in that direction.

Therefore, consideration would need to be given as to whether the doctrine applied notwithstanding any subsequent change of will.

It is surprisingly often overlooked in advising a client who is in the process of a divorce of the need to consider what testamentary provisions, if any, they have in place, as well as issues of joint ownership of properties, which will be considered in a subsequent chapter.