Divorcing? Remember to update your Will

Why should I make or review my Will?

If you are going through a divorce or separation, considering what would happen in the event of your death is probably the last thing on your mind.  However, we strongly advise that you do so. You should review your Will at the start of the process to ensure that, in the unfortunate event of your death, your assets are distributed in accordance with your wishes. Divorce can take months and sometimes even years to finalise.

Reasons to change your existing Will.

• If you are engaged in a bitter dispute with your spouse or Civil Partner, would you really want them to be making decisions about how your property/clothing is distributed or even where your ashes are to be scattered?  If you are not yet divorced, or if the Civil Partnership has not been dissolved, then this potentially distressing scenario could occur.
• If you have a Will in place already, any gifts to your spouse will still take effect during the period up to the date of the decree absolute (the court order that finalises a divorce), so if you no longer want your spouse to benefit, then you need to change your Will. 
• It may also be necessary to change the executor of your Will as your old Will may appoint your (soon-to-be-ex) spouse.

Consider informing your close relatives too. Might they have named your ex in their Will?

If, for example you and your soon to be ex-spouse are executors or trustees of your parents' Wills, would you want to be dealing with that person when you are bereaved?

What happens if you have no Will in place?

If you do not already have a Will, the intestacy rules provide that the first £250,000 of your estate will pass to your spouse in the event of your death, where you also have children.  The excess (if there is any) will be divided between your spouse and your children.  If there are no children, your spouse will inherit everything.

If you are still married and co-habiting with a new partner, it is essential to ensure you make provision for your new partner and any children. Otherwise, your spouse might inherit under a Will you have made and not cancelled, or under the intestacy rules, potentially making your new partner’s position very precarious.

Unlike getting married or entering into a civil partnership, a Will is not revoked upon a divorce or the dissolution of a civil partnership.  This is why it is so critical to take advice at this time.

CONTACT OUR WILLS & PROBATE TEAM ON 01827 317070 TO MAKE YOUR APPOINTMENT

  Your Property - Severing a beneficial joint tenancy

It can be distressing to find yourself in divorce proceedings and feel that you are fighting for your share in the equity of the property.

It is worth considering how you own the property, because if you have not already severed the joint tenancy, should you die before the completion of the divorce process, your share will automatically pass to the surviving, spouse.

To prevent this happening, your solicitor can prepare a Notice of Severance. Once this document is signed and sent to your spouse it has the effect of ‘severing’ the beneficial joint tenancy and converting it into a tenancy in common. You can then indicate in your Will to whom your ‘severed’ share in the property should go in the event of your death.

  What happens if you die once you have divorced, but have not made a new Will?

Any previous Will remains valid, but the terms of the Will are applied as though your former spouse/civil partner had died before you.

Here is an example of the effect of a divorce on a Will.

David married Helen in 2004 and made a new Will in 2005. His 2005 Will named Helen as executor to act with Mary, his sister. In the Will David left his personal possessions to Helen and  cash legacies to his nieces, with the entire residue also passing to Helen and, if she should predecease him, the residue would pass to the RNLI. David and Helen’s relationship broke down in 2006 and David initiated divorce proceedings. The decree absolute was issued in 2008. David died in 2020 without having made a new Will.

The effect of David and Helen’s divorce is as follows:

The Will takes effect as if Helen had died on the date of the decree absolute, leaving sister Mary as the sole executor to administer the estate. The gifts to Helen under the Will also fail, as if she had died on the date of the decree absolute. The personal possessions therefore fall into residue, and the default residue provisions take effect, as Helen is treated as having died, so that the entire residue  pass to the RNLI. The cash legacies to the nieces remain valid. 

However, up until the date of the decree absolute, had David died in say 2007, Helen would still have inherited all of David’s estate (save for the cash legacies to the nieces). 

CONTACT OUR WILLS & PROBATE TEAM ON 01827 317070 TO MAKE YOUR APPOINTMENT

The contents of this article are intended for general information purposes only and shall not be deemed to be or constitute legal advice. We cannot accept responsibility for any loss as a result of acts or omissions taken in respect of this article.