divorce and your Will
If you are going through a divorce or
separation it is important that you plan for your future by
reviewing or making a Will. It can take many months if not
years for a divorce to go through. You should therefore
review your Will at the early stages of divorce proceedings to
ensure that your assets will pass as you want them to.
Here we answer some of the most frequently asked
I have not made a Will. Do I need to make one now?
You should make a Will. If you have
not done so then the law sets out how your estate will pass, which
depends on its value and the family members you leave behind.
Whilst you are in the process of divorcing the law will inevitably
mean that part, if not all, of your estate will pass to your
spouse, which may or may not be what you want.
- If your estate is less than £450,000 and
you die leaving a spouse but no children then everything will pass
to your spouse.
- If your estate is less than £250,000 and
you die leaving a spouse and children then everything will pass to
your spouse. If your estate is over £250,000 then the first
£250,000 and your personal possessions will pass to your
spouse. Half of the remainder is divided equally between your
children. Your spouse will receive the income on the other
half during his/her lifetime and on his/her death, the capital will
pass to your children.
By making a Will you can state how you want your estate to pass,
appoint executors to administer your estate and guardians to look
after your children.
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what role can guardians play?
Under your Will you can appoint a
guardian to take care of your children if you die whilst they are
under 18. If you are married both of you will have parental
responsibility. When you divorce each of you will continue to
have parental responsibility, even if your child lives with the
other parent or there is a residence or contact order in place.
I have already made my Will. Do I need to change it?
Any gifts in your Will to your spouse
will continue to take effect during the period up to the date of
the decree absolute (the court order that finalises a
divorce). If you no longer want your spouse to benefit from
your estate then you will need to change your Will.
what effect will the divorce have on my Will?
The decree absolute does not revoke your
Will, but it does have four major effects:
1. The provisions in your Will
appointing a former spouse as executor or trustee will take effect
as if s/he had died on the date of the decree absolute;
2. The appointment of a former
spouse as a guardian in the Will is revoked;
3. Any property, or interest in
property, that is given to your former spouse in your Will passes
as if s/he had died on that date; and
4. Provisions in your Will
conferring a power of appointment on a former spouse will be
treated as if s/he had died.
If your former spouse was the only
beneficiary under your Will then following your divorce your estate
will be distributed in accordance with the intestacy rules, which
may or may not be what you want.
what could be the effect of a decree of judicial
A decree of judicial separation has no
effect in relation to gifts under your Will.
what will happen to the house?
Most couples own their house as 'joint
tenants', which means that on the death of the first of you to die
it will pass automatically outside of the terms of your Will, by
survivorship, to your surviving spouse/former spouse. If you
do not want this to happen then you can change the ownership of the
property so that you both own it as 'tenants in common' so that
your share passes to the beneficiaries named under your Will.
You may also want to review your joint
bank accounts for the same reason.
what happens if I live with my new partner after my
If you cohabit with your new partner then
you must make a Will if you want to ensure that they benefit from
your estate, because at present the intestacy rules do not provide
for them to do so.
what happens if I remarry?
Remarrying will have the effect of
revoking your Will. You should therefore put in place a new
Will. This can be done before you remarry by making your Will
in contemplation of marriage so that it comes into effect when
signed and will continue to be effective following your
can someone bring a claim under the Inheritance (Provisions for
Family and Dependants) Act 1975?
You have freedom to leave your estate to
whomever you wish. However, the above Act provides that
certain categories of people can bring a claim against your estate
if they feel that reasonable financial provision has not been made
for them. The people who are able to bring a claim
- a spouse (including a judicially
- a former spouse who has not remarried
(provided no order has been made barring them from bringing a claim
in the divorce order). Orders for financial provision in
favour of a former spouse are rare because the court has wide
powers to make capital adjustments between spouses by way of
ancillary relief in the divorce proceedings
- a person who during the whole of the
period of two years ending immediately before the death lived in
the same household as the deceased as husband and wife
- any person maintained by the deceased
immediately before his/her death.
You may wish to consider the possibility
of such claims being made and perhaps leave a written statement
setting out your reasons for making your Will in the way that you
how can Blake Lapthorn help?
Blake Lapthorn can help you to review
your current Will or make a new Will to ensure that your assets are
protected and are dealt with in accordance with your current