Should I change my Will before or after I divorce?

Updating your will, or making one, is probably not going to be highest on the priority list when you are going through a divorce or separation. But it is crucial if you want to make sure your assets do not go to your ex when you die. This article explains the rules when you separate or get divorced.

What happens if I die without making a will before my divorce is finalised?

If you haven’t made a will, then when you die, your estate will be paid out according to the rules of intestacy (see below). This means that if you are still married, and without children, your spouse will receive everything. However, if you are married with children, your spouse will receive all your personal possessions, the first half of £270,000 and half of any remaining value. Any children receive the other half when they attain 18 years of age.

A spouse has the right to inherit under intestacy rules even if, at the time of your death, you were separated and started divorce proceedings. It is important to remember you are still considered being legally married to someone until you receive the final order confirming the divorce has been completed.

What are the rules of intestacy?

Anyone who dies without having made a will at all or has made one, but it is invalid, will be deemed to have died “intestate”.

The rules of intestacy have not changed for many decades and  therefore do not take account of modern family relationships, making no provisions whatsoever for unregistered or unmarried partners. In reality, this means that if you are not married and die, your partner will not automatically inherit your estate. This could affect both new and old relationships alike. Intestacy rules include:

• Only biological and adopted children are recognised for the purposes of inheritance; they do not acknowledge any step children, for example.
• The estate will be divided in a specific way. So, if someone died who was married and had no children, their entire estate will go to their spouse.
• If someone dies who was married but had children, the first £270,000 of their estate goes to their spouse together with their personal possessions. Anything over £270,000 will be divided, with the spouse receiving 50% and the children entitled to a share of the remaining 50%.
• If the deceased is not married, but living with their long-term partner, they will not be entitled to receive anything from the estate. Cohabitees are not protected under intestacy rules.
• If the person who died was single, but has children, the whole estate will be divided amongst them. If there are no children, then estate may go to the deceased’s parents, siblings, or other relatives.
• Any assets owned jointly with another person may not pass in accordance with the rules set out above, but instead pass to the surviving joint owner.

What happens to jointly owned assets?

It is important to deal with any jointly owned assets because it is not possible for some jointly owned property or money to be passed under the provisions of a will. Instead, it will pass to the surviving joint owner.

If you own property with your ex as “joint tenants”, your interest in the property cannot be left by will, and if the situation is not remedied, will automatically pass to your ex when you die. This issue can be addressed by converting ownership to that of “tenants in common”, which allows you to leave your share in any jointly owned property to whoever you want in accordance with your wishes. You should also take steps to deal with any bank accounts held in joint names.

What happens if I haven’t updated my will during the divorce?

If you have a will but haven’t got around to getting it updated during separation, the terms of the will remain effective until the final divorce order is granted by the court. So, if you made your ex an executor or gave them any gifts from your estate, they remain valid. This is still the case if you have been separated for many years but never divorced.

After the divorce is finalised and the final order received, any will naming your spouse as beneficiary is dealt with as though they had died during your lifetime. Essentially, appointments and/or gifts will not apply. This is fine where other people have been appointed as executors, but issues could arise if you left your whole estate to your ex-spouse. Here, unless you have made specific default provisions setting out what should happen in these circumstances, your estate will be dealt with under intestacy rules.

Should I write a will if I am getting divorced?

Ideally, as soon as possible, after separating or formally beginning the divorce process, you should either update your existing will or make one. The terms of the will should reflect what you want to happen to your estate after you divorce. If, after being finalised, it turns out the terms of your new will cannot be carried out, for example, because you sold property included in the will as part of the divorce settlement, then your will should be updated to reflect the situation.

Does my divorce mean my will is automatically revoked?

As stated above, your will remains valid, but in respect of inheritance, your ex is treated as if they had died at the point your marriage or civil partnership is dissolved. If your will does not specify what happens in the event of your ex’s death (or perceived death under the above rules), then the rules of intestacy may apply.

Can my ex make a claim on my estate?

Ex-spouses can make a claim on the estate if they can show they were being financially maintained by the deceased person. If you are financially maintaining your ex after divorcing, such as paying maintenance, and have excluded them from your will, they could potentially make a claim under the Inheritance Act. The best thing to do in these circumstances is to draft your will in such a way that gives your executors the flexibility to negotiate with your ex in order to protect the interests of the other beneficiaries. In such circumstances, it is important to obtain legal advice.

If you are considering separating or divorcing and you require legal advice to understand your options, contact specialist divorce solicitor Holly Lamb of Stowe Family Law. A Partner and Head of her team at this highly-respected family law firm, Holly is an extremely accomplished, intelligent, and proven divorce solicitor and family lawyer.