The Effects of Divorce and Separation on your Will
6 August 2020 | |
Many people assume that a Will made while you are married is automatically cancelled if you later get divorced. This is a common misconception, and the truth is that getting divorced does not mean your Will is cancelled.
Your Will remains valid, but your ex-spouse is treated as if they had died on the day the divorce becomes “absolute”. So any appointment in the Will of your former spouse as an executor or a beneficiary will no longer take effect, but the rest of the Will stays valid. This article looks at some of the common questions that arise during or after a divorce.
What if we are separated but still married?
If you are separated but still married, then this has no effect on your Will at all. You are still legally married to your spouse and the terms of the Will remain unaffected. So if you don’t want your spouse to inherit from you or to deal with the administration of your estate, then you should update your Will as soon as possible.
When a couple separate, they are often going through a process of reaching a financial settlement. This can be a good time to review who you want to inherit your estate when you die. If this is not your soon-to-be ex, then you should update your Will. You do not need to wait until the divorce is finalised before changing your Will.
You don’t have to leave anything to your spouse if you don’t want to. However, spouses and former spouses are two of the categories of people permitted to make claims under the Inheritance (Provision for Family and Dependents) Act 1975. They may be able to make a claim against your estate for reasonable financial provision and, if successful, could end up receiving a share of your estate. Our specialist team can advise on how best to protect your wishes. This can include signing a statement that explains your reasoning, which can be used to help protect against any potential future claims. You should also seek specialist advice regarding the financial settlement, and whether you have a clean break and consent order.
If you don’t have a Will at all, then your spouse will inherit under the Intestacy Rules. These are a set of rules laid down by the government which state what happens to the assets if a person dies without a Will. If you are still legally married (regardless of whether or not you are separated) then your spouse will inherit some or all of your estate. What they receive will depend on whether you have other family members such as children, and also on the value of the estate. It is always best to make a Will because you then decide who gets what from your estate.
What about Executors?
Executors are the people responsible for the correct administration and distribution of your estate. If your former spouse was named as an Executor and you then get divorced, their appointment will no longer be valid. If you named other Executors in the Will alongside your ex, or as substitutes, then the other people you named will still be able to act.
If your ex was the only named Executor, then you will no longer have any valid appointment of Executor. You should update your Will to appoint a new Executor(s), to avoid uncertainty when anything happens to you.
What about the in-laws?
Often, couples will leave their estate to be divided between each side of the family. It is only the naming of your spouse in the Will that is affected by divorce, not their family. So after the divorce, potentially the in-laws could still inherit some of your estate, which may not be what you want. If this is the case, you will need to update your Will.
What if I want to include my ex?
You can still gift assets to your ex, or appoint them to be an Executor, a Trustee or a Guardian, even after a divorce has been finalised. This is entirely your choice, and your wish to name them in your Will may still stand even after you have divorced.
If this is the case, then you will need to update your Will to ensure that naming your spouse can still take effect, in spite of the divorce.
If you don’t amend the Will after the divorce, then your ex will be treated as if they had died on the day of the divorce. If you still want your ex to inherit or to be an Executor, then speak to one of our team so we can ensure this can still take effect.
I have been told to sever the joint tenancy – does that mean I don’t need a Will?
Married couples often own their home as joint tenants. This means that when one of them dies, the surviving co-owner automatically inherits the deceased person’s share, regardless of what it says in their Will (or what the intestacy rules say, if there is no Will).
Severing the joint tenancy means you change the type of co-ownership to tenants in common. You then each own a separate share of the property, usually half each although the shares can be altered depending on the circumstances. If you own as tenants in common, then when one co-owner dies their share does not pass automatically to the surviving joint owner. We need to look at their Will (or the intestacy rules if they don’t have a Will) to see who is entitled to inherit their share.
If you have severed the joint tenancy but the divorce is not yet finalised, then you must ensure you have a valid, up to date Will in place. Otherwise, your spouse could end up inheriting the whole property.
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