We were fascinated to read an article on This is Money about whether exes can split a pension 10 years after their divorce.
My wife divorced in February 2001 and her then husband took control of his large final salary pension from ITV which he accrued whilst she was a stay at home mother.
He took early retirement and had drawn on the pension for around 12 years when he unfortunately died of cancer.
Legal question: Can you claim a late ex-spouse’s pension if there was no court settlement before they died?
During the divorce the assets except his pension were amicably split 50/50. He was already in receipt of the pension at the time of the divorce.
As this was his only income (he was not yet old enough for state pension) my wife agreed that he could keep the pension.
However, this was a private agreement (not court) and was made without any expectation that he would be diagnosed with cancer and die only a few years later.
Following his death my wife contacted ITV to see if she could get any of the pension, which must have been substantial as he was still quite young. They advised that she could not.
However, the article makes us wonder if this was mis-advice and if she has a legal claim?
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Steve Webb replies: Thank you for referring back to the very interesting original article by Tracey Moloney of Co-op Legal Services.
Steve Webb: Find out how to ask the former Pensions Minister a question about your retirement savings in the box below
I suspect that many people will not have realised that it may be possible to obtain a share of an ex-spouse’s pension even years after a divorce has occurred, provided that no overall legal settlement was agreed at the time of the divorce or since then.
Pension sharing is generally available in divorces and annulments where the divorce petition is filed on or after 1 December 2000.
However, in your wife’s case the fact that her first husband died before any such pension sharing took place means that she is now likely to miss out.
If the first husband had been drawing a regular monthly pension from the ITV scheme then when he died a widow’s pension would usually have been payable.
However, this would only apply to anyone he was married to (or, in some cases, living with) at the time of his death. I would not expect a divorced spouse to have any claim on such a pension.
The only possible exception to this would be if there was some sort of lump sum payable on death.
If the divorce was amicable and the first husband had no other family or dependants it is just possible that your wife could still have been left as the preferred recipient of any such lump sum. But I would have expected the scheme to have contacted her by now if this was the case.
How are pensions shared out in a divorce?
Steve Webb and lawyer Katie Spooner, partner at Winckworth Sherwood, explain how it works here.
Such lump sums would however only be payable normally if someone died soon after starting to draw a pension, and as the ITV pension was in payment for around 12 years, it is unlikely that any such lump sum would have been paid.
I should mention that if, instead, the first husband had transferred the value of his pension out of the ITV scheme into a personal pension or drawdown account then the rules would be different.
When he died, the pension provider would look at his ‘expression of wishes’ to see who should inherit any balance of this fund.
Again, this money would probably have been distributed by now, so it is hard to see how your wife would now be able to claim a share of any transferred pension funds.
The whole area of pensions and divorce is an extremely complex one. Your wife’s experiences are a reminder of the importance of recognising at the time of a divorce that pension assets are a very important part of the overall wealth of the couple and need to be considered as part of any settlement.
It also shows the value of taking expert professional advice at the time. Although this advice does not come cheap, the sums involved with pensions can be very large so it is worth getting it right at the time if possible.
Splitting a pension in a divorce
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