Q: Does an Ex-Wife Have a Claim Against Her Former Husband’s Estate?
A: Maybe.
One may assume that divorce permanently severs all financial ties between former spouses; but under the Succession Act that is not entirely accurate.
The Act defines a “dependant” to include:
… “the wife or wives, former wife or wives, and the children of the deceased whether or not maintained by the deceased immediately prior to his death.”
This means that a former wife qualifies as a dependant and may apply to court for reasonable provision from the estate.
In determining whether to award provision, the court has discretion to consider:
💠Her financial position and earning capacity
💠Whether there was a divorce settlement
💠The length and economic interdependence of the marriage
💠The size of the estate
💠The needs of other beneficiaries
💠Whether reasonable provision has already been made
Note: A separated wife continues to qualify as a wife for succession purposes and is therefore a dependant. The same position applies to a separated husband.
Where there is a valid Will, these issues can be addressed deliberately rather than left to litigation.
A carefully drafted Will can:
🔹Clarify your position regarding a former spouse
🔹Confirm that adequate provision was made during divorce
🔹Make express provision if appropriate
🔹Reduce ambiguity that fuels estate disputes
🔹Divorce ends the marriage; Failure to update your estate plan keeps the issue alive.
Now you know- Plan wisely…
This is general information only- contact us for legal advice.
