Post-death maintenance agreement changes MCA 1973 s. 36
MCA 1973 s. 36 allows a surviving party or personal representative to ask the court to alter a maintenance agreement within six months of probate.
Where a maintenance agreement within the meaning of section 34 above provides for the continuation of payments under the agreement after the death of one of the parties and that party dies domiciled in England and Wales, the surviving party or the personal representatives of the deceased party may, subject to subsections (2) and (3) below, apply to the ... court for an order under section 35 above. An application under this section shall not, except with the permission of the ... court, be made after the end of the period of six months from the date on which representation in regard to the estate of the deceased is first taken out. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . If a maintenance agreement is altered by the court on an application made in pursuance of subsection (1) above, the like consequences shall ensue as if the alteration had been made immediately before the death by agreement between the parties and for valuable consideration. The provisions of this section shall not render the personal representatives of the deceased liable for having distributed any part of the estate of the deceased after the expiration of the period of six months referred to in subsection (2) above on the ground that they ought to have taken into account the possibility that the court might permit an application by virtue of this section to be made by the surviving party after that period; but this subsection shall not prejudice any power to recover any part of the estate so distributed arising by virtue of the making of an order in pursuance of this section. Section 31(9) above shall apply for the purposes of subsection (2) above as it applies for the purposes of subsection (6) of section 31. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Text in force at .
Source: legislation.gov.uk — The National Archives (legislation.gov.uk), reproduced under licence Open Government Licence v3.0.
What it actually says
When a written maintenance agreement provides for spousal or financial payments to continue after the death of one of the parties, either the surviving ex-spouse or the deceased person's personal representatives can apply to the court to alter that agreement. This applies if the deceased died domiciled in England and Wales.
An application under this section must generally be made within six months from the date representation (such as probate or letters of administration) is first taken out. The court may grant permission to apply after those six months have passed, but executors or administrators who distribute the estate after six months are not personally liable for failing to anticipate a late application.
If the court alters the agreement, the changes take effect as if the parties had agreed to them for valuable consideration immediately before the deceased died.
When it applies
- An ex-spouse receiving monthly payments under a written separation agreement asks the court to increase the payments from the deceased ex-partner's estate.
- An executor of an estate applies to court to reduce or end ongoing maintenance payments written into an agreement because the estate lacks sufficient funds.
- A surviving former partner asks the court for permission to apply to alter a maintenance agreement after the six months timeframe from probate has passed.
What this section does not say
- Altering a maintenance agreement while both parties are still alive, which is covered by mca1973s.35.
- Varying a financial court order rather than an agreement made between the parties, which is covered by mca1973s.31.
That's the law. Now let's settle your problem.
Say what is happening. A neutral mediator hears your side and the other party's, and walks you both to a written agreement. In the advanced settings you can ask for the decision to be reasoned on the Acts of Parliament that apply in England and Wales.
Or open a session directly and invite the other party.
We copy this text from the official publisher and re-check it against that source on every page load, but we cannot guarantee it is complete, current or free of error, and we accept no liability for any reliance on it. An amendment can take effect before a consolidation catches up. The publisher's own copy is linked below; where the two differ, it is the official one that counts.
This page reproduces the text of MCA 1973 s. 36 in force at the date shown and explains it in general terms. It is not legal advice and takes no account of the circumstances of your case, which can change the answer completely. For a live dispute, for limitation periods, and before taking any step in court, consult a qualified lawyer in England and Wales.