It’s well known that a major life event like getting a divorce can profoundly affect your emotional well-being and leave you out of pocket. However, it’s not well known how a divorce affects the validity of your Will.
Whilst some relationship breakdowns can be amicable most are, of course, not. So, if you don’t want to run the risk of ‘turning in your grave’ while your ex inherits your estate, then it’s vitally important that you update your Will when your relationship breaks down.
And, if you haven’t yet made a Will, doing so after you’ve separated from your spouse or civil partner will ensure your dependants are looked after in the event of your death.
Here’s everything you should know about wills and divorce and how the law surrounding these matters can have an impact on your family’s inheritance.
How Wills and divorce law affects you depends on what stage of the divorce process you’re at and whether the Court has issued a final Order called the Decree Absolute yet.
Basically, whilst you’re still married in the eyes of the law (which you are until a Decree Absolute is issued by the Family Courts), any existing Will you may have made during your marriage is still valid and effective.
This is still the case even if you’ve been separated for a long time or divorce proceedings have been started; the issue of a Divorce Petition or a Decree Nisi does not legally end your marriage, only a Court issuing a Decree Absolute does.
This means that until the Court issues a Decree Absolute, if your Will states that your entire estate passes to your spouse upon your death, all of your property and personal belongings (unless specifically gifted/bequeathed to someone else in your Will) will automatically pass to your surviving ex-spouse.
Key takeaway: If you’re still married when you die, what’s written in an old Will could mean your ex inherits almost everything you own or possess, potentially leaving next-to-nothing or ‘small change’ for your loved ones or dependants.
Important Note: Regardless of what is stated in your Will, if you jointly own a property with your former spouse as ‘joint tenants’, your half share in the matrimonial property will automatically pass to your surviving ex-spouse. Your divorce lawyer will advise you about how to protect your share in a matrimonial property until it’s sold.
Yes and no...
Yes, insofar as your former spouse is concerned as they are usually no longer entitled to any inheritance after a divorce has been finalised and the Court has issued the final Decree Absolute (unless they’re financially dependent on you - more on this below).
But, no, it doesn’t invalidate any other aspect of your Will that doesn’t specifically relate to your former spouse.
A divorce only invalidates that part of a Will that makes provision for an ex-spouse to inherit; all other terms and provisions of your Will remain valid.
Once a Decree Absolute is issued by the Family Court, your former spouse can no longer benefit from any provisions contained in any preexisting Will you made during your marriage, unless they are your sole beneficiary.
If your Will states that most if not all of your estate should pass to your former spouse and you did not include a provision in your Will for a second [substitute] beneficiary (i.e. your child/children), the Rules of Intestacy will apply.
This means that if you are still legally married at the time of your death, your ex-spouse would legally still remain as your ‘next of kin’, thus inheriting the majority, if not all, of your estate.
However, if this is the case but you are legally and officially divorced prior to your death, then your estate would pass to your children.
As mentioned above, a legal document [Court Order] issued by the Family Courts called a ‘Decree Absolute’ is the ONLY document that legally confirms you are officially divorced in the UK; a Divorce Petition, Consent Order or Decree Nisi (or any other official Court document in family proceedings) doesn’t mean you’re legally divorced.
According to Citizens’ Advice, an average divorce can typically take 4 to 6 months or longer, especially if there is a disagreement on how finances, property or children are divided. And Co-op Legal Services states the average divorce takes around 12 months - a lot can happen in 12 months!
For all of the reasons outlined above, experts recommend that you should write a new Will as soon as you separate from your spouse, even if divorce proceedings are imminent or have already been started, as you run the risk of your former spouse inheriting your estate.
Key takeaway: When separated but not divorced and spouse dies, the surviving spouse can still inherit the deceased spouse’s estate. To stop this from happening you should update your Will or make a new Will whilst you’re waiting for your divorce to be finalised.
If you die without a Will in the UK and were separated from your spouse at the time of death but not divorced, your ex would still inherit your estate.
This is because dying without a Will means the Rules of Intestacy will apply and your ‘next of kin’ (who is your spouse when you’re still married) will inherit the first £250,000 of your estate along with all of your personal chattels (possessions).
The remaining part of your estate (if anything is left after £250,000 has been deducted from it) is then divided in half. One half will, yet again, go to your spouse and the other half to any children you may have upon them attaining the age of 18 years.
Key takeaway: The only way to safeguard your children’s inheritance is to make a Will as soon as possible after separating from your spouse. Not making a Will could potentially leave your spouse ‘dancing on your grave’ and your children penniless!
Read more: What happens if you die intestate in the UK?
If a divorcee dies leaving no children, their estate will pass to their parents or, if both parents are dead, their siblings.
However, you might not want this to happen if you’ve remarried or entered into a new civil partnership.
The only way to ensure you make provision for your new spouse or civil partner (and your new family, if you have one), is by making a Will to clearly set out your wishes.
Key takeaway: To ensure a new spouse/civil partner and any children receive an inheritance from you, you need to make a Will.
Potentially, yes, but this very much hinges on the particulars of your divorce and the financial settlement agreed upon.
If a divorced spouse can prove that they were financially dependent on the deceased spouse, they can contest a Will and attempt to make a claim on the deceased spouse’s estate under the Inheritance (Provision for Family and Dependants) Act 1975.
If a divorced spouse is financially dependent on their former spouse and regularly receives financial assistance from them (i.e. maintenance payments and/or mortgage contributions) and this arrangement forms part of what was officially agreed and documented in the divorce settlement, there is no foolproof way to prevent this from happening.
The best you can do is make your executor/s aware of this potential threat and seek professional advice on how best to protect your named beneficiaries’ interests.
Key takeaway: If your former spouse relies on you financially after you’ve divorced, they could contest your Will and make a claim on your estate should you die before that financial arrangement is severed.
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