How does divorce affect my Will?

07 September 2017

How does divorce affect my Will?

Before considering how a dissolved or annulled marriage or civil partnership affects your Will, it is worth considering what provisions have already been devised or bequeathed to your spouse or civil partner if you were to die today.

What will happen to my Estate after I divorce?

Ownership of property is a good example. Perhaps you own your house as joint tenants with your spouse or partner. In this instance under the rights of survivorship it is likely that your spouse or civil partner could inherit your property (your home) regardless of your intention to divorce. In addition, if you have a Will and you have not yet divorced, even if you are in the processing of divorcing but it is not absolute, your spouse could receive all of your estate. Furthermore, in the absence of a valid Will, your spouse or civil partner could still have a substantial right to your Estate through the laws of intestacy. This is because unless stated to the contrary, the law makes the assumption that the remaining spouse or civil partner qualifies to inherit your Estate upon your death.

So, what will happen to my Will after I divorce?

A breakdown of a marriage or civil partnership is not always acrimonious. Some people may be happy for their Estate to pass to their ex-spouse or civil partner, but for others it will be imperative to remove their ex-spouse or civil partner as a primary beneficiary. When a Decree Absolute (end of a marriage) or a Decree of Dissolution (end of a civil partnership) is issued by the court, unless either party have updated their Wills to reflect their desire for each to remain recognised as an interested party to either Estate, there are two main legal effects upon the Wills of spouses or civil partners. Firstly, if the ex-spouse or civil partner has been appointed as an Executor and Trustee of the Will, the law regards that individual as if they had died on the date that the annulment or dissolution was issued.

Secondly, any bequeathed property or interest in property to the former spouse or civil partner will usually form part of the Residuary Estate and pass to the next level of beneficiary as if the former spouse or partner had died. Here, it is important to understand that there is an exception where property is owned as joint tenants. In such cases, annulment or dissolution have no effect on the rights of survivorship and for the avoidance of such circumstances, it would be appropriate to serve a notice of severance and take steps to have a Will drafted or updated. A severance would allow your property to be held as tenants in common and you could gift your share in your Will to any specified beneficiary.

What Should I consider when changing or making a new Will after a divorce?

When changing or making a Will after divorce, it is usual for the testator to want to exclude their former partner from any benefit of their Estate. It is important to understand that the terms of the divorce agreed by both parties will take precedence over any declaration in the Will. Nevertheless, the law allows for applications to be made to the court by the former spouse who feels that they have not been afforded reasonable financial provision (provided they have not remarried). In circumstances such as this it may be feasible for the testator to make small provision for the former spouse or civil partner to limit the possibility of claim.

What if I have Children?

Lastly, if you have children, it is vital that you appoint a guardian to any minor (under the age of 18 years) children you may have in case either parent dies or is unable or unwilling to act as guardian. Generally speaking, any such children of the deceased will reside with the surviving parent provided they have parental responsibility for those children. However, there may be occasions where the biological parent is estranged or does not have parental responsibility. In such cases it is important to seek legal advice and ensure that provision of guardianship is made in your Will.

Key Takeaways

If you are considering divorce, it is advisable that you take the following steps to ensure that your property and Residuary Estate are protected in the event of your death:

  • Consider the appointment of guardians to any minor children.
  • Consider severing your joint tenancy so that your share of your family home passes to your chosen beneficiaries.
  • In the absence of a Will and to avoid your Estate being distributed in accordance with the laws of intestacy, make a Will that reflects your wishes.
  • If you already have a Will, make a new one!
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