Should I Make a Will if I’m Getting Divorced?

19 July 2019

There are a number of reasons why it's a good idea to make or update your Will if you are getting divorced. In this article, we outline what these reasons are.

Ensuring Your Spouse Doesn't Benefit from Your Estate

Depending on the circumstances of your divorce, it could be months or even years after you and your spouse separate before your divorce is legally finalised. During this time, in the eyes of the law you and your spouse are still married.

If you die without a valid Will in place, then inheritance laws called the Rules of Intestacy will determine how your money, property and other assets should be distributed. These rules recognise your spouse as the person who is entitled to inherit the bulk (or all) of your Estate depending on your circumstances. The Rules of Intestacy will apply regardless of whether you and your spouse are separated. If you are still legally married then your spouse will be legally acknowledged as the main beneficiary of your Estate.

This is what they could be entitled to:

  • If you have no children, your spouse will inherit your entire Estate
  • If you do have children, your spouse will inherit the first £250,000 of your Estate together with your personal possessions, and then 50% of what's left (with the other 50% being divided equally between your children)

For this reason, if you and your spouse have separated but are not yet divorced, it's important to make a Will to avoid them being entitled to inherit everything from you.

How Divorce Impacts on the Terms of Your Existing Will

Once your marriage has legally ended, this actually has a direct impact on the terms of any existing Will you already have in place. The reason being that, for the purposes of interpreting your Will, the law treats your ex-spouse as though they have died before you. This means that they will not be entitled to inherit anything at all from you, which also may not be in line with your wishes. Your ex will also not be able to act as the Executor of your Estate.

So, if you have a legally valid Will in place when you get divorced, it's wise to update this to ensure that it remains an accurate reflection of your wishes. A divorce is a significant life event and it's likely that other terms of your Will may also need updating to bring your Will in line with your current wishes.

Making Provisions for Your Children

If you and your ex have children together, it's likely you'll want to ensure that they're adequately provided for after you get divorced. The best way to ensure that your Estate will be distributed in the way that you want is to make a Will setting out exactly who should receive what.

In your Will, you can also appoint legal guardians who can step in to take responsibility for any children you have under the age of 18, in the event of your and their other parent's death. You can also appoint Trustees who will be the people responsible for looking after your children's inheritance until they are old enough to receive it. For more information, see Making a Will to Protect Children.

It's also important to note that if you remarry in the future, marriage automatically revokes any existing Will you have in place. This could mean that your children are accidentally disinherited as your new spouse will automatically become the main beneficiary of your Estate. Unless your Will is made 'in contemplation' of your marriage to your 'spouse-to-be' then you'll also need to make a new Will after you remarry.

Ensuring Your Share in Any Property Goes to the Right People

If you own your marital home (or own a portion of this) then this is a significant asset that you'll want to ensure is passed on to the right people after you die. If you and your spouse own a property jointly as joint tenants, then your share in the property will automatically pass to them on your death (and visa-versa) regardless of what it may say in your Will. For more information, see Joint Tenants and Tenants in Common.

For this reason, if you are keeping the property jointly after the divorce it's a good idea to change the ownership to tenants in common. This is where you both own a specific percentage of the home and you can then pass your share of the property to whoever you wish in your Will.

If you own the family home in your sole name and you want this to ultimately go to your children but allow your ex-spouse to continue living there for the rest of their life, you can consider including a Trust in your Will to provide for this.

This arrangement places the property into a Trust, and under the terms of this Trust your ex can be entitled to remain living in the home, either for a specific period, or for the rest of their life. Then, upon the Trust ending, the property will not be included in the ex-spouse's Estate, but instead, form part of your Estate and be distributed in line with the terms of your Will. This can also work in the same way if you own a share of the property as tenants in common.

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