Divorce, Remarriage and Inheritance Issues.
Modern relationships can be complicated. Divorce and re-marriage are commonplace. As your personal circumstances change, so too should your Will. It’s very important your Will truly reflects your wishes and beneficiaries receive what you want them to.
So, we thought it might be useful to briefly look at how marriage, separation and divorce can affect your Will and what you can do to preserve your estate after you die, for those you care about most.
Does marriage affect my Will?
Getting married or entering into a civil partnership (in England or Wales) makes any Will you have had in place previously, null and void. Unless your Will makes specific reference to your intended marriage or civil partnership and makes provision for that event.
Once married (or in a civil partnership) and you do not make a Will, the laws of Intestacy will come into play. This means that the courts will decide who inherits your estate on your death and not you.
Does divorce affect my Will?
Unlike getting married, divorce doesn’t automatically void your existing Will. While your current Will remains valid, for inheritance purposes, your ex-spouse will be legally treated as if they had died when the marriage or civil partnership ended.
It’s a common misnomer that an old Will from before the marriage will become valid again. This is not the case. The Will should be dis-regarded.
In this context, not having an up-to-date Will can cause issues. If the Will does not state clearly what should happen in the case of a spouse’s death, you could again find your estate in intestacy. If your Will doesn’t reflect the fact you have divorced, the administration of your estate could quite easily end up going against your wishes.
Do I need to make a new Will after I get divorced?
You may not need a new Will per se, amending your existing Will to take your divorce into account may be enough. It will depend how complicated your affairs are.
The main issues you will need to consider are:
• Ensuring your new spouse is provided for
• Ensuring your estate is divided up the way you would like
• Ensuring your children (from all relationships) are provided for and can access their inheritance
You must update – or create – a Will that truly reflects your current circumstances. Failure to do so is likely to put all these things in jeopardy.
Making a new Will can also protect you against any potential claims being brought against your estate under the Inheritance Act. There are numerous cases where ex-spouses and children have successfully made claims for financial provision. A robust and up-to-date Will significantly reduces the chances of this happening.
Even in the case of an amicable divorce, where you and your ex-partner agree on how the estate should be spilt, there is no guarantee that this will happen unless it is expressly written in your Will.
Anything left to your ex-spouse in your original Will is revoked. And this doesn’t mean that anything they were due to receive is automatically given to other beneficiaries.
Executors and Trustees
Divorce will usually revoke the appointment of a former spouse to serve as Executor or Trustee. If an alternative Executor is named in the Will, they would serve instead. If the Will didn’t name an alternate Executor, the probate court would appoint someone to administer your estate.
Conversely, if you appoint any in-laws as Executors or make any gifts (to them) and they subsequently divorce, your Will is not affected by that divorce. The terms of the Will remain in force.
If your Will doesn’t make provision for a new marriage or civil partnership, it will, as mentioned before, become null and void. On remarriage, you should create a new Will that properly reflects the circumstances surrounding your new relationship.
It is particularly important to do this if there are any children involved. That way, they will receive what you intend to leave them.
David & Joan
Take David and Joan. They have lived in their house for over 30 years. The property is solely in David’s name. David did not make a new Will after he divorced and married Joan.
David’s estate, which is largely made up of the house he has shared with Joan, is worth in excess of £250,000. David dies and Joan inherits the first £250,000, with the remainder divided equally between David’s three children from his first marriage.
Naturally, Joan expects to be able to live in the house she has called home all her married life. Unsurprisingly, arguments ensue. Who should own the house, who has the right to dictate what happens to it and does Joan have the right to live there until she dies?
David could have avoided this upset by making a new Will or revising his old one. Furthermore, starting a family conversation about estate planning, including obligations to spouses, former spouses and children would have helped enormously. It may not be an easy subject to discuss for many of us, but worthwhile in the long run.
Estate planning can benefit from a mix of things. At the top of the list is speaking openly with family members. It might be uncomfortable to begin with, but clarity will avoid unwelcome surprises. And keep your Will up to date. Carefully worded legal documents are invaluable.
For further information or advice, please contact us. We’re here to help.
Please note that all views, comments or opinions expressed are for information only and do not constitute and should not be interpreted as being comprehensive or as giving legal advice. No one should seek to rely or act upon, or refrain from acting upon, the views, comments or opinions expressed herein without first obtaining specialist, professional or independent advice. While every effort has been made to ensure accuracy, Curtis Parkinson cannot be held liable for any errors, omissions or inaccuracies.