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Making a Will when divorcing

The last 12 months have been very testing for us all. For many couples,...

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Making a Will when divorcing

23rd April 2021

News : Divorce & Family Wills & Probate

The last 12 months have been very testing for us all. For many couples, sadly, the pressures and restrictions have put an unbearable strain on their marriage. For some, this has also resulted in them deciding to bring their relationship to an end.

It is completely understandable that updating or making a Will may not be the first thing on your mind when going through a separation. However, it isn’t something that should be readily overlooked.

What happens to my Will when I divorce?

When the ‘Decree Absolute’ comes through, ie when the divorce is finalised, your ex would be treated as though they died before you.

If your ex was your sole executor and beneficiary (as in many straight forward Wills), you may not have a substitute appointed to administer your estate.

Any gifts to your ex would be void, and you may also not be clear who your estate was to go to. Particularly if no substitute is included.

If you have children under 18, it may not be clear who is to safeguard their inheritance for them.

If you have not thought about updating your Will since your divorce, despite having made a perfectly valid Will in the past, you could die effectively intestate.

In these circumstances, ‘Intestacy Rules’ would determine who was to inherit your assets. 

If you do have more than one executor appointed, and substitute provisions for beneficiaries, then the Will should still be valid. Any residuary beneficiaries, who are not your ex partner, would still receive what you had intended for them to get. However, not changing your Will after divorce can lead to problematic gaps.

What happens if I die before Decree Absolute is pronounced?

You are still legally married until the Decree Absolute.

Your ex would still inherit your estate, even if you are living apart. If you don’t keep your Will updated to reflect your current situation, your spouse or civil-partner would inherit under the terms of your Will.

Further, If you do not have a Will, they would inherit most (if not all) of your estate under the Intestacy Rules.

This is the case even if you have been separated for many years.

Do I need to name my former spouse as a Guardian for our children?

It is wise to include a Guardianship clause in your Will if you have young children.

This allows you to choose who you would want to look after your children in the event of your death. If your ex has ‘parental responsibility, you don’t need to specifically include their details in your Will.

However, you can always include this provision (as well as any substitutes or alternatives) for certainty and peace of mind.

Would any provision for my step children still take place?

All other Gifts left in a valid Will would still take effect. That is any gifts made to anyone other than your former spouse.

However, to avoid any confusion, it would be worth revisiting your Will to ensure your intentions are clear.

Can I still leave a gift to my ex?

It may be that you want to leave a gift to your ex, even after divorce.

You can absolutely do this, however, this cannot be done simply by relying on an existing Will. As mentioned above, any gifts to them would be cancelled by the divorce.

You would need to re-write your Will after you have received your Decree Absolute, or make a Will in the meantime specifically referring to the divorce.

It is important to consider the impact a divorce can have on your Will so you know your estate is going to be inherited by those you wish to benefit.

Poole Alcock can help you create a Will that protects your loved ones and ensures your estate goes where you want. Call us today on 0800 389 7093 to get through to our expert team. Alternatively you can visit our Wills and Probate services page here or complete this form for a call back.

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