Obligation of personal representative to ex-spouse of deceased

17 November 2021


There are many obligations of personal representatives in the context of an estate, but one particular explicit obligation is set out, not in the Succession Act 1965 but in the Family Law (Divorce) Act 1996.

There is no provision in the Family Law (Divorce) Act 1996 which states that the succession rights of the parties to a marriage are extinguished on divorce. It is part of the concept of freedom to marry. Who are free to marry only single persons? – a single person owes no succession obligations to anyone else.

However, even though, this is the case, an ex-spouse still has a residual claim over the estate of their deceased former spouse. This is set out in s. 18(1) of the Family Law (Divorce) Act 1996 which provides that an ex-spouse has the right to apply within six months of the date of grant for an order from the court that the court shall “make such provision for the Applicant out of the estate of the deceased spouse as it considers appropriate having regarding to the rights of any other person having an interest in the matter . . .

You might say to yourself, “Mmm I thought divorce was clean break? . . how does this fit in? . . is a divorced person always looking over their shoulder wondering whether a claim will be made . .?? “

The answer is yes, kinda. We will get to the kinda, later in this blog. However what is important to note is that under s. 18(6) of the 1996 Act, there is a powerful obligation on a per rep which is as follows:-

An order from the court is available in some cases for an ex-spouse

The personal representative of a deceased spouse in respect of whom a decree of divorce has been granted shall make a reasonable attempt to ensure that notice of his or her death is brought to the attention of the other spouse concerned . . .

So, it appears that a per rep must make a reasonable attempt to contact the ex-spouse of a deceased person? Seems an onerous obligation? It seems to fly in the face of the concept of divorce? However, this rule remains and it is an important obligation of an executor. However, there is a but coming.

The “but” is the provisions of s. 18(10) of the 1996 Act which provides as follows:-

On granting a decree of divorce or at any time thereafter, the court, on application to it in that behalf by either of the spouses concerned, may, during the lifetime of the other spouse or, as the case may be, the spouse concerned, if it considers it just to do so, make an order that either or both spouses shall not, on the death of either of them, be entitled to apply for an order under this section.

Essentially on the granting of the divorce or at any time after that, either party may apply to the court to block the succession rights of the other. This is known as a mutual blocking order. In 99% of divorce cases, a mutual blocking order is part of the divorce decree. So generally in practice, this obligation of the per rep to notify does not arise.

However, it is important if dealing with the estate of a deceased Irish divorced client that you obtain a copy of the divorce decree. You need to see a reference in that divorce decree to a s. 18(10) mutual blocking order. If it is not there, then, you should advise your personal representative client of their obligations to notify under 18(6). In fact in all your probate cases where dealing with a single person, it is important to check whether the deceased was married before and if a divorce decree has issued and this should be part of your usual checklists in managing estates.

Hopefully this of use and if you need any assistance on will drafting, probate or CAT queries please email me on ckelly@hcalaw.ie