Wife still technically married to estranged husband may inherit his estate

The importance of making sure you update your Will when you separate from a spouse has never been more graphically illustrated than by a recent court case.

A woman who was married for less than a month almost 30 years ago could inherit from her estranged husband's estate because he failed to divorce her before his death.

Although divorce proceedings began in 2009, unknown to the wife, a decree absolute was not granted until July 2011 - crucially this was 17 days after her husband's death following surgery.

Now a judge in the Central Family Court in London - in a case thought to be the first of its kind - has ruled that the couple were technically still married at the point of death because the divorce hadn't been processed at the time.

Background

The couple, who can't be identified, were together for less than a month after they married in 1989, never lived together and may never have consummated their marriage.

They separated shortly afterwards and a few years later, the husband became a woman. She changed her name by deed poll and her female gender was officially recognised in 2008.

The wife only found out that her husband had died when private detectives traced her in 2016. Her husband had made a Will a few months before her death in which she claimed the relationship was never consummated although the judge said this was irrelevant. The couple had brief contact in 1990 but had not seen each other or spoken again.

Judge Judith Hughes QC said: "I find that the marriage was valid at its inception and that the wife was still married to the deceased on the date of the death. She is entitled, therefore, to a declaration that the marriage subsisted on the date of the deceased's death."

The death has sparked litigation in America and the ruling that the couple were still married may affect who inherits the estate.

Importance of changing your Will when you separate or divorce

It's important to be aware that being separated has no legal effect on a Will and your spouse will still inherit under any Will, no matter how long you have been separated.

All of the provisions of the Will remain valid until the decree absolute is granted. So if your Will leaves everything to your spouse, they will still inherit if you die before the decree absolute is granted. This is unlikely to be what you want.

That's why updating your Will at an early stage of the divorce proceedings should be seen as a priority. Even at a stage when you don't know how the matrimonial assets will be divided, a Will can be drafted in general terms and updated later.

By doing this you can ensure that your children or other chosen beneficiaries inherit your estate, rather than your former spouse.

For advice on making or updating a Will, please contact our Wills, Probate and Mental Capacity Team.