What happens when someone dies before a pension sharing order is implemented depends on who died and whether the order had taken effect.

A pension sharing order goes through three stages: the court makes it, it takes effect, and the pension scheme then implements it by setting up the receiving ex-partner's share. Death changes the outcome differently at each stage, so the stage matters as much as who died. Court steps after a death are for a solicitor. Your own pension income is separate, and an FCA-authorised adviser covers that side; to arrange a free call-back, send in this page's form.

Which stage had the order reached?

Who diedBefore the order takes effectAfter it takes effect, before the scheme implements it
The pension holderThe order cannot take effect, and the pension that would have been shared goes into the scheme's death benefits.The order still stands and the scheme must still carry it out, subject to its rules.
The receiving exNo pension credit exists yet, so ask a solicitor how the court case is affected.A special regulation decides what the scheme does, and the court can be asked to set the order aside.

The dividing line is the day the order "takes effect". Section 24B of the Matrimonial Causes Act 1973 says a sharing order "is not to take effect unless the" divorce order it follows "has been made final". The Nuffield Foundation's guide to pensions on divorce adds that an approved order "cannot take effect for at least 28 days, or until the date of the Divorce Final Order, whichever is the later", assuming the usual 28-day limit applies. How that date is worked out is in the pension sharing order timeline; what a final order does is in pension sharing after decree absolute.

When the pension holder dies before the order has taken effect

The order never takes effect. The guide says that if the pension holder dies before or during those 28 days, the order "cannot take effect", and the benefits that would have made up the share become part of the death claim instead. The scheme's trustees then pay death benefits under the scheme's own rules, and what those are is in how pension death benefits work.

This is why timing the final order matters. The same guide says the "easiest way to deal with this" gap is to avoid applying for the final order until the 28 days have passed. Whether to hold it back is a call for your solicitor, because waiting has other effects; the decree absolute page explains why some people do.

When the pension holder dies once the order is in force

Once the order takes effect, section 29 of the Welfare Reform and Pensions Act 1999 applies. The pension holder's rights become subject to a debit, and the receiving ex "becomes entitled to a credit of that amount as against the person responsible for that arrangement". Practitioner guidance adds that the order "must still be implemented subject to scheme rules". Only what is left after the share is carried out falls under the scheme's death benefits.

The scheme can act only on an order it knows about. Trouble starts when nobody has served the court documents on the scheme, so it does not even know the order exists; make sure someone has sent them.

If the receiving ex dies before the pension sharing order is implemented

Section 35(2) of the 1999 Act covers a person entitled to a pension credit who dies before the scheme has discharged its liability. The usual rules for discharging a credit stop applying, and regulation 6 of the 2000 implementation and discharge regulations takes over. The scheme must still discharge its liability. What that means turns on the scheme's own rules:

  • Where the rules so provide, the scheme can pay a lump sum or a pension to one or more other people, or buy an annuity or insurance policy for them.
  • Where they do not, the credit is "discharged by retaining the value of the pension credit in the pension arrangement from which that pension credit was derived".

So the receiving ex's estate or family does not automatically get the share. The guide says the answer "will depend on the rules or provisions of the pension arrangement itself" and advises that "it is critical that inquiries are made of the pension provider in good time".

In Goodyear, Mrs Goodyear died after an order giving her 51% of her ex-husband's pension, before the scheme had implemented it. The trustees accepted that their deed did not allow payment to her personal representatives, and they amended it in May 2022, before the judgment. The judge recorded that both sides agreed that, without an amendment and without a set-aside, the credit would be retained and "neither of these parties would benefit". If the trustees' letter about the credit is hard to follow, an adviser can go through its meaning for you, free of charge, via the call-back form here.

Can the court undo the order after a death?

Sometimes. The guide calls a receiving ex dying before implementation "perhaps the most common Barder scenario relating to pensions", where the cause of death could not have been anticipated. Since 2016 these are pursued as applications to set aside, not as late appeals. The conditions come from Barder v Barder (Caluori intervening) [1988] AC 20. They ask whether a new event has undermined the basis on which the order was made, whether it happened within a relatively short time of the order (rarely as much as a year, and usually no more than a few months), whether the application was made reasonably promptly, and whether reopening the order would prejudice third parties who acquired interests in good faith.

Death alone is not enough. The guide says it "will not automatically justify an application to set aside", and the outcome can depend on whether the share was meant to meet income needs or simply to divide what the marriage built up. In Goodyear the court did set the order aside and replaced the 51% share with 25%, so the estate still received a credit. That was one judge's decision on its own facts; whether an application is worth making is for a solicitor.

Scotland

The court steps above are for England and Wales. Regulation 6 is marked as applying in Scotland as well, but Scottish orders have their own timing: under section 28 of the 1999 Act an order is treated as never having taken effect unless the scheme gets the documents and prescribed information within 2 months, counted from the decree extract's date; a Scottish court can extend that. Pensions on divorce in Scotland covers the Scottish process.

Frequently asked questions

What happens to a pension sharing order when one of you dies?

If the order has not yet taken effect and the pension holder dies, it cannot take effect. If it has taken effect, it stays in force, and the scheme must deal with it under its rules.

Do I get a widow's pension if I am separated but not divorced?

That turns on the scheme's own rules. The Civil Service nuvos scheme guide, for example, says a lump sum nomination naming a husband, wife or civil partner stays valid during legal separation and lapses on divorce, but that covers the death lump sum, not a survivor pension. Other schemes set their own conditions, so check the rules of the one concerned. Survivor benefits more generally are in how pension death benefits work.

Does it matter if the death was expected?

It can. The typical Barder case involves a death whose cause could not have been anticipated, so how a court would treat an expected death is a question for your solicitor.

How quickly must a set-aside be sought after a death?

Reasonably promptly in the circumstances, which is one of the Barder conditions. In Goodyear the application came within one day of the death, which itself happened just over six months after the order was approved.

Who do I contact first if my ex has died?

The pension scheme, so you know its rules on the credit, and a solicitor for the court side. Contact both early.

Has a bereavement left your retirement income looking different? Ask for an FCA-authorised adviser to examine the pension side, free of charge, through this page's short form. The order itself is explained in the pension sharing order explainer, and the wider picture in pensions on divorce.

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