In this short article I talk about separation, divorce and Wills – what is it we should think about?
We often write articles about momentous life events. Getting your first home together or marrying or becoming Civil Partners can be exciting. Having children, getting married for the second time and stepchildren too. All of these are joyous events. And all of these are times when you should make or update your Will.
But what about if you are separating or getting divorced? If you have a Will, you should know the effect on it. You should also think about taking some sensible steps as soon as you separate. That will ensure your share of your estate is protected. Here is a brief overview of the interaction between separation, divorce and Wills.
Divorce
Unlike marriage, where a Will is revoked automatically in law, divorce does not invalidate your Will. Your Will remains valid, but your ex-spouse / civil partner is treated as if they are no longer around. The term you may hear is that they are deemed to have “pre-deceased” you. Practically what does that mean?
If your spouse is an Executor of the Will, they will not have the legal right to act. So you may need to appoint someone else – especially if your Will only appoints them (something we wouldn’t recommend anyway!).
If your spouse is a beneficiary of any gifts of items, money, property or a share of your estate, then they no longer benefit. So that means your “substitutes” will benefit (if you’ve appointed any!).
However, if your Will appoints Guardians for your children “if your spouse has pre-deceased you”, then this appointment still stands. The fact they still have parental responsibility for your children remains regardless of marital status.
So, it may feel like it won’t really matter if you have others appointed or named as beneficiaries. But it is always useful to tidy your Will up and make a new one. That way, it is less complex in the future.
Note that the above only applies when the divorce is legally finalised. That means on the completion of a Decree Absolute, not on the issue of a Decree Nisi. It is also important to take legal advice and make sure you have a financial agreement in place. That way you avoid your ex-spouse coming back in the future with a claim on your estate!
Something else to note. If you appointed your spouse/civil partner in a Power of Attorney, they will no longer be able to act. You may need to review those to ensure you still have people who can!
Separation
Separation, Divorce and Wills are linked. And many people think about only making a Will, or a change to it, after the divorce is complete. But it is incredibly important to take action as soon as you become separated. There may be assets, such as your home, that are jointly owned. These would pass automatically to your spouse if you died before a financial agreement was made!
And this doesn’t just apply to marriages or civil partnerships that are coming to an end. It also applies to couples who have lived together and are separating too.
We can help you take steps to amend the property ownership. That will mean your share (and your separated partner’s) can be dealt with separately in your Wills. For example, you may wish to ensure your children get your share of the home rather than your former partner.
I know there is a lot going on at this time and it can be incredibly emotional. But taking steps early can avoid some awful situations.
We have a young client whose parents separated 25+ years ago. He hasn’t seen his Dad for over 20 years. His Mum has died and because there was no formal agreement, divorce or Will made, everything now passes automatically to her estranged husband. The son gets nothing, and more sadly, doesn’t even have the legal right to administer her estate.
So you should think about making a Will and also writing a letter to explain why you are excluding your partner at this time. It really is the kindest thing you can do for those you love.
Something else to note. If you appointed your partner in a Power of Attorney, they will still be able to act! You may no longer want that to happen so review these important documents too!
More information
We have a guide written specially for situations like this. Our Separation, Divorce and Wills guide talks about some practical steps you can take. It is available on request HERE. Or just give us a call on 01524 571032 and we can have a chat or organise a FREE 30-minute consultation.
And if you make/update your Will with us when you separate, we will update if for you FREE OF CHARGE when the divorce is finalised if you wish.
We are here to help!