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Changing a will after divorce or separation

by Wednesday, June 8, 2016

If you have been through, or are going through, a marriage breakdown, making a will may not have even entered you though process. However as any current will is unlikely to be suitable for your new situation, it is well worth considering making a new will to reflect your new life situation.

If you’re separated

It is important to be aware that no matter how bad your relationship is, from a legal standpoint, you are still legally married, so nothing has changed where inheritance law is concerned.

Because a separation has no legal effect on a will, your spouse will still inherit under any will, no matter how long you have been separated. So a fresh will that reflects your new situation should be a priority.

If you have no will at all, your spouse will still inherit from you under what are known as the intestacy rules, and your estate would pass to them if there is no will. How the intestacy rules would affect you depend on your own circumstances, but here are two examples:

• If you are married without children, all of your estate and personal chattels will pass to your spouse.
• If you are married with children, the first £250,000 of your estate, and all of your personal chattels, will pass immediately to your spouse. The rest of your estate will be divided into 2 equal parts. One half will for your spouse, and the other half will be held for your children in equal shares, until they are 18.

Provide for a new partner with a will

If you are in a new, serious, relationship after parting from your spouse, consider making a will that provides for your new life.

A new unmarried partner can’t inherit from you, unless you make a will providing for them. Without this provided in a will, they may need to go to court to get provision from your estate.

If you’re divorced

If you have received the decree absolute, financial matters have probably been settled between you and your former spouse. Regarding your estate, it can still get complicated, though, and will need careful consideration.

You already had a will before the divorce

If you made a will before your divorce, this will is still legally valid, and this creates a number of problems.
Many married couples appoint each other as the executors and beneficiaries of a will, either alone, or to share with the children.

The divorce has the effect of removing the former spouse from the will completely, while the appointment of other executors and beneficiaries remain valid.

If your former spouse was the main beneficiary of the estate, this will now not go to them but will fall into intestacy rules, which means your wishes may not be carried out as to who gets the estate.

A divorcee with children

the estate would go to their children. However, should that divorced person and his or her children die together, for example in a car accident, then the estate would go to the divorced person’s parents or, if they are not alive, brothers and sisters (or their children) of the divorced person.

If the divorced person was an only child, or has no parents, siblings, nieces or nephews surviving them, then it would be grandparents or aunts and uncles (or their children) who would be entitled. This is unlikely to be what you would want, so making an up-to-date will provides for this scenario.

A divorcee without children

The estate would go to their parents or brothers or sisters. This may suit you, but if you have a new partner, and perhaps a new family, they may not be properly provided for. Updating your will ensures that your changed circumstances are accounted for.

Making provision for your children

As beneficiaries: your own children can always inherit from you, but stepchildren and an unmarried partner’s children can only inherit from you if you adopt them, or if you make a will that mentions them.

Guardianship

If you have separated or divorced, it may be particularly important for you to appoint a guardian in the event of your death. Both parents should ensure that there is someone to take care of their children in their place.

Usually, the appointment of a guardian won’t take effect where there is a surviving parent, but where following divorce proceedings a residence order has been made in favour of the parent appointing the guardian, the appointment will take effect on that parent’s death.

Whatever your circumstances, don’t let making a will slip down your list of priorities as it is not expensive in the scheme of things and will ensure that all your loose ends are tied up. We all die eventually and putting it off will just make someone else’s life harder.

Divorce Online have partnered with a leading firm of experienced solicitors to provide bespoke will drafting services from just £99.

click here to make a will after divorce.

Mark Keenan

About Mark Keenan

Editor of the Divorce Online blog

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