Recent changes to the Inheritance (Provision for Family and Dependants) Act 1975 mean that the Court is no longer restricted by the 'divorce hypothesis' when determining the award for a spouse, from the estate of the deceased.
This is important for those who find themselves widowed after a relatively short marriage and not provided for in their husband or wife's will.
The 'divorce hypothesis' allows the Court to consider what the spouse would have received if the marriage had ended in divorce, rather than death. The old law meant it was more likely that the spouse in a short marriage who did not financially contribute would receive less from the estate, than a spouse in a long marriage.
This was plainly not satisfactory. The whole purpose of the Inheritance Act is to address the current and future needs of the applicant. The length of the marriage is just one of the many factors that the Court should have regard to, but it is not determinative.
The Court is now directed that there are no upper or lower limits on the award that can be made for a spouse when applying the 'divorce hypothesis'. This takes away confusion that perhaps crept in to Inheritance Act claims following significant divorce cases, such as White v White, in which the focus is on achieving fairness, rather than satisfying an individual's needs.
Of course, fairness still plays an important role within Inheritance Act claims. Following Re Coventry it is clear that the Court ought to consider whether it is right that the estate should make provision for the applicant, taking in to account all of the circumstances. It can be argued on behalf of a spouse that it is fair that the estate make an award because it is not their fault that their spouse died.
It now seems likely that a widow in a short marriage would probably do better under the Inheritance Act, than in a divorce context.