Making a Will, or updating your current one, may not be high on your list of priorities when you are going through the upsetting experience of separation or divorce but it is something you need to do if you want to ensure that your assets do not unintentionally go to your former husband or wife when you die.
Heather Wannell, Associate & Chartered Legal Executive in our Wills, Trusts and Probate department, explains the rules on Wills when you get divorced or separate.
What happens if I die without a Will before my divorce is finalised?
If you die without making a Will, the question of who should get what will be determined by the rules of intestacy. These set out who is entitled to inherit your estate and the amount they should receive.
If you are married without children your spouse will receive everything. If you are married with children your spouse will receive all your personal belongings, the first £250,000 plus half of the remaining value. Your children will receive the other half when they reach 18 years of age.
The right of your former husband or wife to inherit under the intestacy rules applies even if, at the time of your death, you have separated from them and have commenced divorce proceedings.
It is important to be aware that even if you have received a decree nisi from the court confirming that grounds for divorce have been established, you are still legally married until you receive the decree absolute confirming your divorce has been completed.
What happens if I have a Will but I choose not to update it?
If you already have a Will, but do not get around to updating it while you are separated or going through the divorce process, the terms of the Will shall remain effective until you have received your decree absolute. This means that any gifts to your former spouse, or any appointments given to them to, for example, act as your executor or guardian to your children, will remain valid. This is the case even if you have been separated for many years.
Once your divorce has been finalised and the decree absolute has been received your Will shall take effect as though your former husband or wife had died during your lifetime. What this means is that any gifts or appointments concerning them will no longer apply. This is fine if you have named other people in your Will to act as your executor or to benefit from your estate, but problems can arise if you have left everything to your former spouse; in these circumstances, unless there are default provisions setting out what should happen, your estate will have to be dealt with under the intestacy rules.
I am getting divorced – what should I do?
As soon as you separate or make the decision to instigate divorce proceedings you should make a Will or update your existing one to reflect any change in your wishes. The terms of your new Will should reflect what you want to happen to your estate after your divorce. If, when your divorce is finalised, it turns out that the provisions of your new Will cannot be carried out your Will can be updated to reflect this. For example, you may have been ordered to hand over property included in the Will as part of your financial settlement.
What about assets that I own jointly with my spouse?
As well as making a Will it is important to deal with any assets that you own jointly with your former husband or wife. This is because it is not possible for some jointly owned money or property to be passed under a Will – instead it automatically passes to the surviving joint owner when you die.
The rules on jointly owned money and property are straightforward, but the legal jargon that goes with it is not. Put simply, if you own property with your former spouse as ‘joint tenants’ your interest in the property cannot be left by Will and, if you do not do something about it, will automatically pass to your spouse when you die. To address this problem, you can convert your ownership to that of ‘tenants in common’ which will allow you to leave your share in any jointly owned property to whoever you want. Steps should also be taken to deal with any bank accounts in joint names.
For a confidential discussion about Wills and divorce, please contact our experienced team.