Claims by surviving spouses

Recent Court of Appeal judgments have underlined the impact of White v White [2001] 1 AC 596 (HL) upon a surviving spouse claim under the Inheritance (Provision for Family and Dependants) Act 1975. In an article in the Family Law Journal for October, Sidney Ross of 11 Stone Buildings highlighted the key points. The article examined the effect of the decision of the House of Lords in White on the way in which courts have dealt with claims by surviving spouses under the Inheritance Act. Because s3(2) of the Act (referred to in the article as the ‘notional divorce’ provision) directs the court to have regard to the provision that the applicant might reasonably have expected to receive if, on the day on which the deceased died, the marriage, instead of being terminated by death, had been terminated by a decree of divorce, the matrimonial case law is to some extent relevant. Is the notional divorce element ‘merely one of the factors to which the court is to ‘have regard’ as in Re Besterman [1984] ChD 458 CA or did it mean, as in Moody v Stevenson [1992] ChD 486 CA, ‘that the acceptable minimum posthumous provision for a surviving spouse should correspond as closely as possible to the inchoate rights enjoyed by that spouse in the deceased’s lifetime by virtue of his or her prospective entitlement under the matrimonial law’? In Re Jessop [1992] 1 FLR 591 CA the Court of Appeal declared in favour of the Besterman approach. According to the author, any hope that a consistent approach for surviving spouse claims might be achieved was dashed by the decision in White. After considering the most recent judgments, the author concluded that they have clarified the implications of White for 1975 Act claims, and have reiterated the necessity to give proper weight to all the relevant statutory matters, rather than affording primacy to the outcome of the ‘notional divorce’ exercise and that we may hope for a more uniform and predictable approach to claims by surviving spouses and, in due course, civil partners.