Client Guide: Divorce and your Will

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If you are going through a divorce or separation it is important that you plan for your future by reviewing or making a Will. 

It can take many months, if not years, for a divorce to go through.  You should therefore review your Will at the early stages of divorce proceedings to ensure that your assets will pass as you want them to.  Here we answer some of the most frequently asked questions.

I have not made a Will.  Do I need to make one now?

You should make a Will.  If you have not done so then the law sets out how your estate will pass, which depends on its value and the family members you leave behind.  Whilst you are in the process of divorcing the law will inevitably mean that part, if not all, of your estate will pass to your spouse, which may or may not be what you want. 

  • If your estate is less than £450,000 and you die leaving a spouse but no children then everything will pass to your spouse. 
  • If your estate is less than £250,000 and you die leaving a spouse and children then everything will pass to your spouse. 
  • If your estate is over £250,000 then the first £250,000 and your personal possessions will pass to your spouse.  Half of the remainder is divided equally between your children.  Your spouse will receive the income on the other half during his/her lifetime and on his/her death, the capital will pass to your children.

By making a Will you can state how you want your estate to pass, appoint executors to administer your estate and guardians to look after your children.

What role can guardians play?

Under your Will you can appoint a guardian to take care of your children if you die whilst they are under 18.  If you are married both of you will have parental responsibility.  When you divorce each of you will continue to have parental responsibility, even if your child lives with the other parent or there is a residence or contact order in place.

I have already made my Will.  Do I need to change it?

Any gifts in your Will to your spouse will continue to take effect during the period up to the date of the decree absolute (the court order that finalises a divorce).  If you no longer want your spouse to benefit from your estate then you will need to change your Will.

What effect will the divorce have on my Will?

The decree absolute does not revoke your Will, but it does have four major effects:

  1. The provisions in your Will appointing a former spouse as executor or trustee will take effect as if s/he had died on the date of the decree absolute.
  2. The appointment of a former spouse as a guardian in the Will is revoked.
  3. Any property, or interest in property, that is given to your former spouse in your Will passes as if s/he had died on that date.
  4. Provisions in your Will conferring a power of appointment on a former spouse will be treated as if s/he had died.

If your former spouse was the only beneficiary under your Will then following your divorce your estate will be distributed in accordance with the intestacy rules, which may or may not be what you want.

What could be the effect of a decree of judicial separation?

A decree of judicial separation has no effect in relation to gifts under your Will.

What will happen to the house?

Most couples own their house as 'joint tenants', which means that on the death of the first of you to die it will pass automatically outside of the terms of your Will, by survivorship, to your surviving spouse/former spouse.  If you do not want this to happen then you can change the ownership of the property so that you both own it as 'tenants in common' so that your share passes to the beneficiaries named under your Will. You may also want to review your joint bank accounts for the same reason.

What happens if I live with my new partner after my divorce?

If you cohabit with your new partner then you must make a Will if you want to ensure that they benefit from your estate, because at present the intestacy rules do not provide for them to do so.

What happens if I remarry?

Remarrying will have the effect of revoking your Will.  You should therefore put in place a new Will.  This can be done before you remarry by making your Will in contemplation of marriage so that it comes into effect when signed and will continue to be effective following your marriage.

Can someone bring a claim under the Inheritance (Provisions for Family and Dependants) Act 1975?

You have freedom to leave your estate to whomever you wish.  However, the above Act provides that certain categories of people can bring a claim against your estate if they feel that reasonable financial provision has not been made for them.  The people who are able to bring a claim include: 

  • a spouse (including a judicially separated spouse) 
  • a former spouse who has not remarried (provided no order has been made barring them from bringing a claim in the divorce order).  Orders for financial provision in favour of a former spouse are rare because the court has wide powers to make capital adjustments between spouses by way of ancillary relief in the divorce proceedings 
  • a person who during the whole of the period of two years ending immediately before the death lived in the same household as the deceased as husband and wife 
  • any person maintained by the deceased immediately before his/her death.

You may wish to consider the possibility of such claims being made and perhaps leave a written statement setting out your reasons for making your Will in the way that you have done.

How can Blake Morgan help?

Blake Morgan can help you to review your current Will or make a new Will to ensure that your assets are protected and are dealt with in accordance with your current wishes.

For further information please contact: