For most people who are going through a divorce, or who are thinking about divorce, a will is usually the furthest thing from their mind. However, this can be one of the most important times to think about what would happen to your estate in the event of your death.
Until you have been granted the final divorce decree (the Decree Absolute), you are technically still married. You may have been living separately for a number of years; you may have started a new relationship; you may just be at the start of divorce proceedings or seeking initial advice as to what your rights are. But in all such circumstances until the final divorce decree is granted you are, in the eyes of the law, still married.
Why is this important?
Many people choose to delay formal divorce proceedings for any number of reasons. Sometimes the process starts but stalls – again for numerous reasons, for example as it is often advisable to wait to resolve financial division before applying for the final decree. Alternatively, some people simply choose not to divorce, whilst accepting the marriage is over. However, if you have reached the decision that your marriage has irretrievably broken down, you may not want your spouse to inherit in the event of your death. If you have already made a Will, any gifts to your spouse, or appointments as Executor/Trustee will remain in force until the divorce is finalised. So, even if you have been separated for a number of years, if you were to die whilst waiting for the Decree Absolute to be granted, your spouse would still receive any gifts you had left them in your Will. This would be in addition to any jointly owned property, which would pass to them automatically by survivorship, if you hold it as joint tenants.
If you do not have a Will, the distribution of your estate on your death is governed by the Rules of Intestacy, as set out in the Administration of Estates Act 1925. The Intestacy Rules provide which categories of people inherit, in which priority, and in which proportions. If you are married, the Intestacy Rules provide that the first £250,000 of your estate passes to your spouse (in addition to any jointly owned property). How the remainder is dealt with differs depending on whether you have children or not. If you have children, your spouse receives half of the remainder, and your children receive the other half. If you do not have children, your spouse will receive everything.
In either scenario, you may be left in a situation where some or all of your estate passes to your spouse. For many, this will be the last thing they would want to happen.
Once you have the Decree Absolute, you are divorced. If you have an existing Will, your ex-spouse will be treated as having predeceased you. This means any appointment as Executor or any gifts to them will fail. If you have not stated who you would like to benefit under your Will in the event of your spouse’s death, your estate could pass in accordance with the Intestacy Rules. Whilst for some people, this will mean your estate will pass on to people you would want to inherit, this is not always the case. The Intestacy Rules do not consider the intricacies of family dynamics which will often dictate who we want to inherit on our death. The position can be complicated, and you should always take advice.
Here at Hanne & Co, we always advise clients to think about making or updating their Will when they first approach us in relation to divorce or separation. Our Family and Wills, Probate and Trust departments work closely together to ensure these matters are dealt with at the appropriate time so that your wishes are protected. Call us on 0207 228 0017.
Maisie Lockyer is a solicitor in the Family & Divorce Team at Hanne & Co. LLP