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How does Divorce affect my Will?

31 July 2018

Most people assume that when getting a divorce, gifts to your ex-spouse under your Will are void. This is not the case. Without changing your Will post-separation, you could be leaving nothing a big headache for your loved ones after your death.

What happens to my Will after my divorce?

Your former spouse would be treated as having died before you from the date of the Decree Absolute. This means if your former spouse was appointed as your sole executor and beneficiary, you would not appoint anyone to administer your estate and you would not have anyone to pass your estate to.

Any gifts to your civil partner or spouse would not take effect. So if you have not thought about this post-divorce, despite having signed a perfectly valid Will at the time, you could die intestate.

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

If you have more than one executor appointed, then the other appointments would still be valid. Any residuary beneficiaries, who are not your ex-partner, would still receive what you had intended for them to get. But not changing your Will after divorce can lead to gaps in the inheritances.

What happens if I die before Decree Absolute is pronounced?

Up until the Decree Absolute is announced, you are still legally married. This is the case even if you are living apart from your partner. In this scenario, your spouse or civil partner would still inherit your estate. 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. If you do not have a Will, they would inherit under the Intestacy Rules.

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

If you have children who are under 18, it is sensible to include a guardianship clause in your Will. This means that you can appoint the people you would want to look after your children after your death. Provided that your ex-spouse or former civil partner has parental responsibility then you needn’t include their details in your Will. However, you can always include this provision for certainty and peace of mind.

Would any provision for my stepchildren still take place?

Yes, gifts left to anyone but your former spouse would still take effect. However, it would be worth revisiting your Will to update the terms so as to avoid any confusion.

Can I still leave a gift to my ex?

If, after your divorce, you still want to include a gift to your ex, you can still do this. However, this should still reflect the fact you are divorced. You cannot simply leave your existing Will as it is and hope the gift will take effect. You will need to re-write your Will after you have received your Decree Absolute.

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 from.

Poole Alcock can help you create a Will that protects your loved ones and ensures your estate goes where you want. You can visit our Wills and Probate services page here or complete our online form.

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