I am frequently approached to advise widows and widowers when their spouse dies, particularly if they have been left with less than they thought they would under the terms of a will or intestacy. Sometimes the relationship has effectively been over prior to death, but they require financial security – for example where a woman has given up her career to look after children but the husband has then died having left her for another woman. Sometimes one spouse will try to control matters even after their death, setting down how long people should remain in a particular home for, or how much money they should have from the estate in order to rehouse. Often, parties to a second marriage are concerned to pass on their assets to children from their first marriage and forget that their surviving spouse may require significant financial support after their death.

In all of these cases, the Inheritance (Provision for Family and Dependants) Act 1975 may be able to help. Under the Act, a spouse or civil partner can bring a claim where the disposition of the estate under the terms of a will or intestacy is not such as to make ‘reasonable financial provision’ for them.

Unlike other claimants under the 1975 Act, spouses/civil partners’ claims are not based purely on need. s1(2)(a) of the Act provides that the provision made should be what is it reasonable in all the circumstances of the case for the husband, wife or civil partner to receive, whether or not that is required for their maintenance.

The question of what is reasonable is a vexed one, because it will mean different things to different people. The Court will take various factors into account, including the length and duration of the marriage/civil partnership, the contribution made by the Claimant to the life of the family – which will allow those who have been homemakers or brought up children to have their contributions recognised, and the ‘divorce fiction’.

The divorce fiction entails the Court considering what might have happened if the parties had divorced, rather than one party dying. Given that the level of financial disclosure may not be as extensive in an Inheritance Act claim as a divorce, and the matter may be being heard in a Court which is not specialist in ancillary relief, the chances of getting a very detailed analysis of the figures by the judge are quite low. Most lawyers will start from the basis that there should be a roughly equal division of assets (which they frequently equate with being an equal division of the net estate – this should be very carefully checked because the surviving spouse may have their own assets, particularly in a second marriage). However, in an Inheritance Act claim as only one party has to be provided for (in terms of housing and maintenance) the Court may make greater provision to the surviving spouse. Conversely, where there has been a very short marriage and the surviving spouse is able to work, the Court may move significantly downwards from 50%.

As with all Inheritance Act claims, the question of what should be awarded will depend on the people involved and their personal situations, the value of the net estate, and the other beneficiaries and claimants who have to be borne in mind.

The Court will also take their lifestyle into account – if there is money available, then the Court will normally make provision to allow that lifestyle to continue rather than expecting people to move home, take on a second job or use all of their savings to support themselves.

It is worth remembering that former spouses can also bring claims under s1(b) of the Act, so long as they have not remarried at the date of their application. The provision available will be on the lower standard – what is reasonably required for their maintenance. They will therefore have to show a maintenance need – although this may be possible if they have been maintained by the deceased prior to death.