That’s a good question which many couples may be considering.

Think about how a dissolved or annulled marriage or civil partnership will affect your Will. Think about what arrangements have already been devised or bequeathed to your spouse or civil partner if you were to die today, because generally, that is how you will be treated.

What will happen to my Estate after I divorce?

Ownership of property is a good example. If you own your house as joint tenants with your spouse or partner under the rights of survivorship it is likely that your spouse or civil partner would inherit your property divorced or not. Also, if you have a Will and you have not yet divorced, even if you are in the process of divorcing, your spouse could receive all of your estate. Even if you don’t have a valid Will, your spouse or civil partner would still have a substantial right to your Estate through the laws of intestacy 0where the law makes the assumption that the remaining spouse or civil partner qualifies to inherit your Estate upon your death.

What will happen to my Will after I divorce?

A breakdown of a marriage or civil partnership is not always acrimonious. Some people may be happy for their Estate to pass to their ex-spouse or civil partner, but for others it will be imperative to remove their ex-spouse or civil partner as a primary beneficiary. When a marriage or Civil Partnership ends, unless they have updated their Wills their desire for each to remain recognised as an interested party there are two main legal effects upon the Wills. Firstly, if the ex-spouse or civil partner has been appointed as an Executor and Trustee of the Will, the law regards that individual as if they had died. Any interest in property left to the former spouse or civil partner will usually pass to the next level of beneficiary as if the former spouse or partner had died except where the property is held as joint tenants. In such cases, divorce will have no effect on the rights of survivorship and the property will pass to the survivor. Here it would be appropriate to serve a notice of severance and take steps to have a Will drafted or updated. A severance allows your share of the property to be gifted in your Will to a beneficiary of your choice.

What Should I consider when changing or making a new Will after a divorce?

It is usual for the testator (the person making the will) to want to exclude their former partner from any benefit of their Estate. However, the terms of the divorce agreed by both parties will take precedence over any declaration in the Will but the law allows for applications to be made to the court by the former spouse who feels that they have not been afforded reasonable financial provision (provided they have not remarried). Here it may be possible for the testator to make small provision for the former spouse or civil partner in order to limit the possibility of claim.

What if I have Children?

If you have children, it is vital that you appoint a guardian to any minor (under 18 years) children. A surviving spouse may not be able to or willing to act as guardian.

In short…

If you are considering divorce, it is advisable that you take the following steps to ensure that your property and Residuary Estate are protected in the event of your death:

  • Appoint guardians to any minor children.
  • Sever your joint tenancy so that your share of your family home passes to your chosen beneficiaries.
  • To avoid your Estate being dealt with under the laws of intestacy, make a Will that reflects your wishes.
  • If you already have a Will, make a new one!

Finally

Contact us to arrange a review and get your matters in order. We don’t charge for an initial consultation. Call 0798 883 0691 or contact us here.