A quick glance on the internet reveals any number of useful checklists to help those who are divorcing to reorganise their lives as a single person, from contacting HMRC to change-of-address notifications.
Buried in the middle of these lists is perhaps one of the most important matters to be addressed – your will. Getting – or being – divorced, or ending a civil partnership, is a timely reminder that your will is a living document that, without regular review, can quickly go out of date and give rise to many unintended consequences, not least dying intestate (i.e. as if you had never made a will).
Change your will before you divorce
Divorcing requires considerable gathering of information, much of it financially-related. Thinking about your assets in anything other than financial terms probably doesn’t occur to most people – unless the unexpected happens. If you have a will and you have left all, or even just some of, your assets to your spouse, that will remains valid throughout the process of divorcing even if you have separated and are living apart. This means that if you die, your spouse will receive whatever assets you have bequeathed them under the terms of your will.
According to the most recent ONS figures, the number of men aged 65 and over has increased by 23%, and the number of women by 38%, within a decade. This means that, if you are divorcing later in life, it is a statistical probability that you have an increased chance of dying while the divorce is in progress – particularly if it becomes protracted for whatever reason.
Therefore, it would be prudent to add ‘change my will’ to your checklist so that your estranged spouse is no longer listed as a beneficiary or, if named, as an executor of your will. If you are planning to remarry after your divorce is finalised and you want your new partner to be named in your new will, you can insert a clause to reflect that it is being made ‘in contemplation of marriage to X’. As marriage revokes all previous wills, if you die after having married and without making new will post-marriage, you will die intestate. When drafting a new will during the divorce process, the addition of a letter of wishes outlining why your spouse is no longer a beneficiary will help to head off any claims on your estate if you die before the divorce is finalised.
…otherwise your old will remains valid post-divorce
The dissolution of a marriage or civil partnership does not revoke a will, but it does invalidate any appointment or provision in the will relating to a former spouse/partner. If the terms of your will do not make further provision beyond that of your former spouse/partner, then your estate will be managed as if you had died intestate, which means there is no valid will. The rules of intestacy are very prescriptive, so your assets will be distributed in strict order of family relationships, potentially resulting in the distribution of your estate in a different way to that you would have chosen and may also impact on advance estate planning. It is vital that you take legal advice to review your will following divorce, the termination of a civil partnership or any change in your personal circumstances.
With the rise in second and even third marriages, family structures and relationships are increasingly complicated. On re-marriage, many people make wills to ensure that their assets are split proportionately between their respective families. If the relationship breaks down, the likelihood is that you will want to reconsider to whom you want your assets distributed not least, as failure to do so, may spark a claim against your estate under the Inheritance Act 1975 which is costly, emotionally draining and very time-consuming.
What else should I think about?
If you have put Lasting Powers of Attorney in place (for finance and property and / or health and welfare) the chances are you have named your spouse as one of your attorneys. If you are getting divorced, it would be sensible to remove your spouse as an attorney and appoint someone else you trust in their place. To do this, you must send a deed of revocation to the Office of the Public Guardian. If you have appointed other attorneys (such as adult children or other responsible adults) to act for you jointly and severally, your LPA can continue while you sort out the revocation.
If you are married, you may own the family house as joint tenants which means that you both own 100% of the property. If one of you dies the house automatically goes to the surviving spouse and thus falls outside your estate – even if you have updated your will because you are in the process of divorcing. The answer – if feasible – is to change the title so that you and your spouse own the house as tenants-in-common, whereby each of you will own a distinct share (usually 50-50 although the ratio could differ to reflect your individual financial investment). Your share is then yours to leave in your will to whom you wish. Understandably this is not necessarily something you would want to do in the emotional upheaval of a divorce but it something that your lawyer will be able to help you with.
Likewise, if your ex-spouse dies, any regular payments you receive as a result of your divorce settlement will stop so it is worth considering insurance options before your divorce is finalised.
The common law myth
A common mistake is to assume that if you are unmarried but in long-term relationship (often erroneously referred to as a common law spouse) your partner will automatically inherit your estate if you die. This is not the case. If you die without having made a will, the intestacy laws prevail and your nearest relatives (starting with any children) will inherit, regardless of whether or not you are still together or in the process of leaving the relationship. However, if you have made a will in which you have left assets to your partner then it is essential that you change it if the relationship ends. Unlike a married couple, the ex-partner, unlike an ex-spouse, does not cease to ‘exist’ as far as the will is concerned and will continue to be a beneficiary if named as such.
We all know how distressing it is to end a relationship regardless of the circumstances, and emotions will range from deep sadness to fury. Nonetheless, working through your checklist can be cathartic as it helps you plan ahead – and changing your will is a powerful way of signalling that you are in control of your new future. Our family team works closely with our private client team, which has considerable experience of advising divorcing couples on wills, LPAs and other related matters. Please call us and we would be delighted to talk you through the options.
The information provided in this article is provided for general information purposes only, and does not provide definitive advice. It does not amount to legal or other professional advice and so you should not rely on any information contained here as if it were such advice.
Wright Hassall does not accept any responsibility for any loss which may arise from reliance on any information published here. Definitive advice can only be given with full knowledge of all relevant facts. If you need such advice please contact a member of our professional staff.
The information published across our Knowledge Base is correct at the time of going to press.
