It is well established that claims for reasonable financial provision under the Inheritance (Provision for Family and Dependants) Act 1975 (“the 1975 Act”) are treated different depending upon whether a claimant is a spouse or a cohabitee.
The long-standing position is that spouses are usually expected to receive a more generous award than a cohabitee, whose provision might be limited to what is reasonable for their “maintenance”. In contrast, spousal claims are subject to the “divorce cross-check” – a mechanism to ensure that spouses whose marriages end as a result of death do not come off worse than those whose marriages end in divorce. Unlike divorce cases, however, there is only one spouse who then needs provision from the assets.
In spousal cases the Court will consider the needs of the surviving spouse, the extent of matrimonial assets and contributions made to the family that are non-financial such as staying at home to care for children.
The “divorce cross-check” has been described by the Courts as neither a floor nor a celling – it is simply the starting point of an evaluative exercise that will take into account a myriad of factors including the size and nature of the Estate.
The recent case of Thirsk v Thirsk [2026] EWHC 1501 (Ch) demonstrates this perfectly. In this case, Sarah Thirsk and her husband had been together for 19 years and living together but only married for one year prior to his death in 2022. The Will left her a right to occupy the matrimonial home and a £5 million tax free legacy. She brought proceedings under the Inheritance (Provision for Family and Dependants) Act 1975 arguing that this did not constitute reasonable financial provision for her.
Sarah Jane Thirsk’s evidence was that she and her husband enjoyed a lavish lifestyle, spending an average of £700,000 per year.
Looking at the size and nature of the Estate – which was valued at around £26 million – and the very long relationship between them notwithstanding they had married only a year earlier, the Court increased her award.
The Court found that some of the assets of the Estate were not matrimonial assets and had been acquired either prior to the relationship or using inherited wealth. Those assets were excluded from the calculations as they would have been on divorce.
The Court awarded Sarah Jane Thirsk a total of approximately £8 million including a capital sum for maintenance for a period of 30 years.
This spousal claim under the 1975 Act saw the Court emphasise an approach that the purpose of any order in favour of a spouse is to provide enough to help a surviving spouse transition into independence. This was the reason a lump sum was given for a period of 30 years (albeit Mrs Thirsk was 47 years of age) rather than provision for life which has previously been the more usual expectation in spousal claims under the 1975 Act.
Partner Jennifer Laskey who heads up the Contentious Trusts and Probate Team at Howes Percival says
This is a case that shows the importance of taking the specific circumstances of each situation into account and ensuring that evidence is presented that supports the claim made. An expectation of provision that creates post-death dependency should be managed given the Court’s approach here and the prospect that the award that is made will be geared towards creating independence instead.
For more information about 1975 Act claims or any other issues arising from Wills or probate please contact our expert team here.
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