Wills and Divorce

If you are just going through or have been through a separation or divorce, thinking about your will is an important part of putting your affairs in order.

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Wills and Divorce

In England and Wales, if you make a will when you are married and subsequently divorce, your divorce can alter the terms of your will.

Although your will remains valid, your ex-spouse will no longer be able to benefit from it, unless you have expressly stated otherwise. They will also no longer be able to act as an Executor or Trustee under your will.

Making a new will is probably the last thing on your mind. But as your existing will is unlikely to be appropriate to your new circumstances, it is worth addressing this sooner, rather than later.

Separation

Separation has no effect on a will meaning your spouse could still inherit no matter how long you have been apart.

Separation can take many forms and the difficulties of going through this process may mean that updating a will is low on your priority list. It is important to remember however that from a legal point of view, you are still married, so nothing has changed where your will is concerned.

If you have no will, your spouse would still inherit from you under the intestacy rules, and your estate would pass to them in the absence of a will. How the intestacy rules would affect you depend on your own family circumstances, but here are two examples:

  • If you are married without children, all your estate and personal chattels will pass to your spouse.
  • If you are married with children, the first £270,000 of your estate, and all your personal chattels, will pass immediately to your spouse. The rest of your estate will be divided into 2 equal parts. One half will for your spouse, and the other half will be held for your children in equal shares, until they are 18.

Further, if you form a new relationship after parting from your spouse you should consider that a partner to whom you are not married cannot inherit from you, unless you make a will providing for them. Without this provision, they may need to go to court to get provision from your estate.

Divorce

If you made a will before your divorce, this will is still valid, and this creates a number of problems.

If you have received the final papers (decree absolute), financial matters have probably been settled between you and your former spouse.

Many married couples appoint each other as the executors and beneficiaries of a will, either alone, or to share with the children. Divorce has the effect of removing the former spouse from the will completely, while the appointment of other executors and beneficiaries remain valid.

If the former spouse was given the larger part, or indeed all, of the estate, and no substitute provisions are made in the will for their absence, then this means that after divorce there is no one to inherit this property. In this instance, the intestacy rules will apply to the assets remaining.

Children

Your own children can always inherit from you, but stepchildren and an unmarried partner’s children can only inherit from you if you adopt them, or if you make a will that mentions them.

If you have separated or divorced, it may be particularly important for you to appoint a guardian in the event of your death. Both parents should ensure that there is someone to take care of their children in their place.

Making a Will is just as important as sorting your other affairs when you separate. Do not delay seeking advice.

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