Post-death pension question

[pensionpuzzled]

NC, obviously.

My husband and I separated five years ago. We were in the process of getting divorced (obtained the decree nisi) but then he said we shouldn't obtain the decree absolute as I would still qualify for his pension after his death so long as we were legally married. We checked this with the private pension provider, who confirmed that this was the case.

He is already drawing his pension. DC are older, but still in f/t education.

Fast forward, and almost-XH is terminally ill. We separated for the good reason that he was abusive. Part of our agreement was that while I would have no spousal support from him (despite being the lower earner and having the DC most of the time), I need not worry because I had his pension to look forward to. However, given that he is now living on borrowed time, he has been consulting lawyers to see if there is any way to block this, despite the rules of the actual pension stating that I would continue to receive it.

It costs him nothing for me to receive this money in due course. He is doing it for pure spite (though I know this motivation is of no interest to the law!)

Do any of you MN legal bods know if it is legally possible to do what he wants to do? We have not got a Consent Order; we have a Separation Agreement which we drew up between ourselves (we both took legal advice prior to this). This was witnessed by two neighbours, but has never been through a court - so I'm not sure how valid it is. He has also made a Will; I don't know what it contains, though our children are likely to be the main beneficiaries.

Can anyone advise me, please?

All I can tell you is that a pension with survivorship rights (i.e. the type that pays out to a surviving spouse) costs more to fund and/or has a lower monthly benefit amount than one that pays only until the death of the beneficiary. I don't think he can just ring them up and change it.

Thank you, MissC. I didn't know about the different payments. I do hope you are right...

It makes sense when you think about it. For the pension company, the key question is how many payments will they have to make. Paying out to a surviving spouse means more money out to them, so they charge more for it or lower the payments to even it up.

Your solicitor is probably familiar with how pensions work.

Now you mention it, it does make good sense. It's all very irksome, as it wouldn't cost XH anything now - he has already paid his dues. He would be trying to block this solely to be spiteful (he has form in this regard). He is mostly angry that I have not hidden his abusive tendencies (and moved out of the family home with the DC, in order to keep them safe), as he would have preferred to have swept it all under the carpet. I accepted a smaller settlement and no spousal support just so we could all move on. As I say, though, I realise this is not of any interest in legal terms. Just background...

I am going to ring the pensions company tomorrow, too (I also have a pension with them - albeit a tiny one, as I became a SAHM only a year or so after I started work, then never worked again - a joint decision, not least as one of the DC has ASD and needed me to be around).

Is it a private pension or pension from his employer?

If he is the petitioner and it's been less than a year since nisi he can get the absolute in a couple of days by sending to court a simple form, or applying online if it is an online divorce.

If it has been more than a year he needs to explain away the delay. You need to notify the court that if he attempts to apply for decree absolute you want it listed for a hearing due to the promises he made to you. Might not work, but might delay things a bit.

On what ground was the petition issued?

If you are the petitioner he could apply for the absolute now but there would be an on-notice hearing and on the facts as you have set out I would expect the court to deny his application.

A person can allocate their private pension to one or multiple people
It is easy to change
Do you both have wills ?

To be blunt
Some people are living to 120
Are you willing to finance another adult for several decades ?

Sorry, wrong section

@MaggieFS

Is it a private pension or pension from his employer?

It's an employer pension (public sector).

@Collaborate

If he is the petitioner and it's been less than a year since nisi he can get the absolute in a couple of days by sending to court a simple form, or applying online if it is an online divorce.

If it has been more than a year he needs to explain away the delay. You need to notify the court that if he attempts to apply for decree absolute you want it listed for a hearing due to the promises he made to you. Might not work, but might delay things a bit.

On what ground was the petition issued?

If you are the petitioner he could apply for the absolute now but there would be an on-notice hearing and on the facts as you have set out I would expect the court to deny his application.

That's interesting...

I am the petitioner. We obtained the nisi about four years ago.

The petition was issued on the grounds of his unreasonable behaviour, and he did not challenge it.

We never did anything online - the nisi was granted via court (I remember going to hand the forms in).

I very much hope your last point is right, if it prevents him from doing anything. It really would be sheer spite (of which he is very capable), given that it will make no difference to him once he is dead, and will cost him absolutely nothing now...

@Inside00ut

A person can allocate their private pension to one or multiple people It is easy to change Do you both have wills ?

We do both have wills. I haven't seen his since we separated. I gather, though, that he has recently re-made it.

I wonder if it's also possible to allocate their employer-based pension to other people. At the moment, I would receive half in the event of his death, and the DC would receive a quarter each so long as they are in full time education.

You can’t allocate the pension element to other people. This can only be paid to a spouse or child as far as I am aware.

You can nominate who you like for any death benefits if any are payable but the Trustees make the final decision although they tend to go along with the nominees.

Thanks, Getting. There aren't any death benefits payable. There was a lump sum element, but he received that on retirement.

We're not talking about huge amounts of money here - but given that I've had no income since the March lockdown, and no spousal support, ever (have been living off savings - I appreciate I have been fortunate to be able to do this, though I was saving them for my own old age, and they are now significantly depleted), it would make a big difference to me to have something to rely on.

I suspect he will try to a) contact the pension provider and remove me from the 'spouse' benefits; and b) state in his will that he wants me not to receive his pension after his death (though I imagine this wouldn't count for anything, if the pension provider is legally obliged to pay out regardless of his wishes).

Which public sector pension scheme is it? I don’t know of any where he’d be deciding half for you and a quarter each for the kids. The benefits are determined by the pension scheme. So you not getting any might slightly increase the amount they get, but it’s not them getting your bit. It doesn’t work like that.

Generally if you are married when he dies he can’t stop you getting the pension. However, he can nominate someone else to receive the lump sum and the pension companies usually respect that nomination.

I very much hope your last point is right, if it prevents him from doing anything. It really would be sheer spite (of which he is very capable), given that it will make no difference to him once he is dead, and will cost him absolutely nothing now...

It is right. I've been doing this for nearly 30 years and this is basic stuff. It's in the discretion of the judge whether to grant the absolute so you'd need some evidence that he promised that if you didn't make a claim on divorce you'd be his widow and have a pension.

Beware that not all schemes provide for this if there is a decree nisi. Also, you should have gone for half the pension 5 years ago, but it's too late now if he's at the point of death.

Thanks, Cabin. I'm sorry if I didn't make it clear. It's the pension scheme itself that dictates half to me and the remainder to be shared between DC in f/t education (two of them, in our case). He doesn't have any say in this. My concern was whether he would be able to override this legally (by claiming that as we have a nisi and have been separated for so long that I am not his spouse in any meaningful way).

I wish I could talk to him about it, but he is too far entrenched in his anger to see that anything from which I benefit is actually going to benefit our DC both in the short and longer term.

When he was still working, he was able to nominate someone to receive a lump sum in the event of his death. He nominated me, but could have nominated anyone he liked. When he retired, this 'death in service' lump sum was rendered obsolete, but he received a retirement lump sum instead.

@Collaborate

I very much hope your last point is right, if it prevents him from doing anything. It really would be sheer spite (of which he is very capable), given that it will make no difference to him once he is dead, and will cost him absolutely nothing now...

It is right. I've been doing this for nearly 30 years and this is basic stuff. It's in the discretion of the judge whether to grant the absolute so you'd need some evidence that he promised that if you didn't make a claim on divorce you'd be his widow and have a pension.

Beware that not all schemes provide for this if there is a decree nisi. Also, you should have gone for half the pension 5 years ago, but it's too late now if he's at the point of death.

Collaborate (I'm guessing you're a legal person...): thank you. I only didn't go for his pension 5 years ago because we found an alternative way to have a clean break (which we needed). Our incomes have been similar ever since (his has been solely his pension). Mine has been a bit lower, and there have been greater calls on it (DC), but as I received slightly more equity from the sale of our marital home, that has been reasonably fair.

However, the understanding - given that I've been earning a bit less than him, and especially given that Covid has torpedoed my sector for the past year - has always been that this will be made up to me once he dies. When I rang the pension provider, they did say it would need to be a decree absolute for the pension not to be paid out, so I hope the person I spoke to is right.

Not sure how I'd prove anything to a judge, though. It has always been a verbal agreement. Hmm.

If it's an employer pension, and the rules of the scheme are that a pension is payable to a spouse in event of death, then them's the rules! I used to work in pensions and we sometimes ended up paying spouse's pensions to people who had separated from the deceased several years before as they hadn't got round to getting divorced. There was discretion however to pay it to a new long term cohabiting partner instead, if there was one, with only the GMP element being paid to the (sort of ex) spouse as required by law.

In short: it will depend on the Rules of the specific scheme. As a potential beneficiary you are entitled to request a copy from the Scheme trustee.

If it's the LGPS Scheme this site has the standards t&cs www.lgpsmember.org/more/partner-dop.php

Thanks, both. I have now got a copy of the scheme rules (longer than War and Peace). It's very clear about spouses, and there's a lot about pension-sharing orders in divorce (which we obviously don't have) - but nothing that I can find about people in the penumbrous state between married and decree absolute!

I certainly can't see anything about there being any option to cancel a pension paid to a legal spouse, or to change the beneficiary. Ex has been single since we separated, so nobody else could say they had a claim. I think he's partly motivated by total hatred of the idea that I might meet someone else and that his pension would end up being "given to another man" - but after my marriage, I'm not saying I would wish to remain single for ever, but even if I did meet someone else, nothing would ever persuade me to throw in my lot financially with them. Especially not when I have the DC to think about.

If it’s less than than ten years since he took his pension there’s probably still a lump sum.

@CabinClose

If it’s less than than ten years since he took his pension there’s probably still a lump sum.

Did you mean to say the opposite of what you posted? There will, I am 99.9% sure, only be a widows pension payable.