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Divorce and Separation – The effects on your Will

It is generally known that newly-weds need to update their Wills, as any existing Will (unless made in ‘contemplation of marriage’) is automatically revoked upon marriage, and is no longer valid.

However, what is the situation if you divorce or separate?

Divorce

The position can be complicated.

If the marriage has ended by a Court Order, such as a Decree Absolute, and the Will was made before the divorce, the Will remains valid but could cause a number of issues. Issues arise particularly where, as is often the case, the married couple appoint one another as the executor, beneficiary and/or trustee in a Will.

If the ex-spouse is named as an executor in the Will, then the issue of the Decree Absolute will revoke their appointment. If replacement or co-executors were named in the Will then their appointment will remain valid and they may act in place of an ex-spouse.

However, if the Will only names the ex-spouse as the executor, then it would fall to the beneficiaries of the Will to take on the role of administering the estate.

If an ex-spouse is named as a beneficiary under the Will, then anything gifted to them will be dealt with as though they had died on the date that the marriage legally ended. In most cases this would mean that the gift would fall back into the estate for the benefit of the residuary/remaining beneficiaries, unless of course something called a substitution clause has been included.  This is a clause which provides for an alternate beneficiary to inherit if one of the existing beneficiaries had died. However, if everything in the Will had been left to an ex-spouse, without providing for a substitute beneficiary, then this would have the effect that the testator had died “intestate” (without a Will in place at the time of death), and the rules of intestacy would define how the estate was distributed. Under these rules, the law decides who is to inherit from the estate, placing relatives in order of priority.  The risk being that the estate might not be distributed in the way that was intended.

Separation

If there was a separation and not a divorce, then things are slightly different and the outcome is more likely to not be what was intended. Under these circumstances the parties remain legally married, as separation has no effect on a Will. The Will would remain valid and the spouse would still be entitled to inherit from the estate as set out in the Will, regardless of how long they had been separated. The same principle here applies if the Decree Nisi has been issued, but not the Decree Absolute.

However, if there is no Will, then this too would fall under the intestacy rules and the spouse would still be entitled to inherit under the estate. The order stated in the intestacy rules not only determines who will inherit, but also who will act as the administrator. The intestacy rules are strict, and do not make provisions for modern relationships, so new partners are unlikely to inherit in such circumstances.

Best practice

Any change in circumstance, be it divorce, separation or marriage and no matter how small could have a big impact on the Will and the way in which the estate may be distributed, so it is important to keep it updated.

If you would like further advice please contact Pamela Jarvis in the Wealth Planning Team on 020 7288 4771 or email her at PamelaJarvis@boltburdon.co.uk .

Alternatively, you can also contact one of our other solicitors in the Wealth Planning team here.

Pamela Jarvis

020 7288 4771
07881 312 497
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