Marriage, Divorce and Your Will
Modern relationships are complicated. Divorce and remarriage are commonplace. As your circumstances change, so too should your Will. Your Will must accurately reflect your wishes so that your beneficiaries receive what you want.
So, how do marriage, separation and divorce affect your Will? What steps can you take to preserve your Estate after you die for those you care most about?
Marriage & Your Will
Getting married or entering into a civil partnership (in England or Wales) voids any previous Will unless you specifically reference your new relationship in your Will.
If you are married (or in a civil partnership) and don’t make a Will, the laws of Intestacy will come into play. The Intestacy rules affect who inherits and how your Estate is distributed after your death.
Divorce & Your Will
Unlike getting married, divorce doesn’t automatically void your existing Will. However, while your current Will remains valid, for inheritance purposes, your ex-spouse is legally treated as if they had passed away when the marriage or civil partnership ends.
It’s a common misnomer that an old Will written before a marriage becomes valid again. Therefore, any previous Will you have prepared should be disregarded.
So, in this context, not having an up-to-date Will may cause issues. For example, if your Will does not stipulate what should happen when your spouse or civil partner dies, you could find your Estate is subject to the Intestacy Rules. And if your Will doesn’t reflect the fact you have divorced, your Estate may be divided up differently to how you plan.
New or Revised Will
You may not need a new Will per se; amending your existing Will to consider your divorce may be enough. But, again, it will depend on how complicated your affairs are.
You should make sure that:
- Your new spouse is provided for
- Your Estate is arranged the way you would like
- Your children (from all relationships) are provided for and can access their inheritance.
You must update or create a Will that accurately reflects your current circumstances. Failure to do so may put your plans in jeopardy.
A new Will can also protect you against potential Inheritance Act claims. It’s not uncommon for ex-spouses and children to make successful claims for financial provision. A robust and up-to-date Will prevents this from happening.
In situations where you and your ex-partner agree on the division of the Estate, unless the terms are clearly defined in your Will, there is no guarantee that this will happen. Anything you leave to your ex-spouse in your original Will is revoked and automatically given to other beneficiaries.
Executors & Trustees
Divorce usually revokes the appointment of a former spouse as Executor or Trustee. Assuming there is one, an alternative Executor will serve instead. If the Will doesn’t name an alternative, the Probate court will 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 unaffected by that divorce. The terms of the Will remain in force.
Remarriage & Your Will
The document becomes null and void if your Will doesn’t make provision for a new marriage or civil partnership. Therefore, on remarriage, you should ensure your Will properly reflects ‘s circumstances your new relationship’s circumstances.
It is imperative 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 made a Will 35 years ago when he was previously married but did not make a new one when he married Joan 30 years ago.
David’s Estate consists of the house he lives in with Joan, now worth £400,000, and he has around £50,000 in savings in his sole name. Joan has little or no savings or personal income. David dies, and Joan inherits the first £250,000, with the remainder divided, half to Joan and the other half 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 since she married David. 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 a significant 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.
Estate planning can benefit from a mix of things. At the top of the list is speaking openly with family members. Initially, this may feel uncomfortable, but clarity will avoid unwelcome surprises. And keep your Will up to date. Carefully worded legal documents are invaluable.
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.