Chartered Legal Executive, Katie Brett, discusses how divorce can affect your will, and the optimum time to address your Will during divorce proceedings.
How does Divorce affect my Will?
The above question is not something you would necessarily think of when you are going through the stress and upset of divorce, but it is an important one, especially as some people are under the impression that commencing divorce proceedings automatically revokes their Will.
The Will still stands during Divorce Proceedings
There are various concerns in relation to your Will, that you need to consider when separating from a spouse or civil partner, before you even commence divorce proceedings. The main issue is that any gift to a spouse under the terms of your Will remains valid until the divorce is completely finalised, which happens when the court grants the Final Order.
To make this very clear, if you are still legally married, even if you have been separated for a significant number of years or have commenced divorce proceedings, your spouse will still inherit under the terms of your Will. They will also inherit under the intestacy rules if you do not have a Will, even if you have children, and if you do not have children, they will be entitled to your entire estate until the Final Order is issued.
Is the Will still valid once the Divorce is finalised?
The Will remains valid even after a divorce is finalised, although it is interpreted differently. Once the divorce is complete, any mention of the former spouse within a Will is treated as though that person died before you.
Substitute Beneficiaries
The other issue you need to consider is that if you do not have any substitute beneficiaries for your spouse, your estate will pass under the intestacy rules, meaning it will pass to members of your family in a specific order stated by law.
You may have had a very valid reason for not appointing substitute beneficiaries at the time you made your Will, and it could be that you do not want your family members to inherit. However, if you do not update your Will, those people could inherit your estate against your wishes.
Will and Estate Disputes
Amending your Will, or obtaining a Will for the first time, when you have separated or in advance of divorce proceedings, can prevent a claim against your estate from your spouse.
Legally, if your spouse is entitled to any part, or all, of your estate when you die, they can make a claim for their share even if you have a Will leaving it to others. Within your new Will, we can include a clause, known as a declaration, confirming that you have deliberately excluded your spouse in light of your separation or imminent divorce proceedings to help defeat any claim they may make.
Should I update my Will as soon as I am separated?
I would always recommend that you consider the terms of your Will when you separate from your spouse, even before divorce proceedings are commenced, to ensure that your estate does not pass to them. If you do not have a Will, you should definitely look to put one in place as soon as your relationship circumstances change.
