Separated But Still Married? Make a New Will
24 February 2021
In England and Wales, if you're married and don't have a Will, your spouse will be recognised as your main beneficiary under inheritance laws. This is the case even if you are separated, providing you are still legally married.
How inheritance laws work
In England and Wales, if you haven't set out who you want to inherit from you in a Will, then strict inheritance laws called the Rules of Intestacy will decide this instead.
The Rules of Intestacy place your relatives in order of priority to determine who will inherit from you and who will be responsible for winding up your affairs after you die. These rules don't always accommodate for modern family relationships.
Many divorcing couples will separate for some time before getting a divorce. In fact, of the five legally recognised reasons for divorce, 2 years of separation and 5 years of separation are two of the most common.
The Rules of Intestacy do not recognise a separated (but married) couple any differently to a happily married couple. This means that if one person died, their spouse would be entitled to inherit from them as the main beneficiary of their estate, regardless of whether they were still happily married or had been estranged for years.
Furthermore, if either person was now in a new relationship then their new partner would not be acknowledged under the Rules of Intestacy. These rules don't recognise cohabiting partners, even if they've lived together for a long time.
What would my estranged spouse be entitled to inherit?
If you die without a valid Will in place and your estate is distributed under the Rules of Intestacy, then this would be divided in the following way:
If you have children, your spouse would receive up to £250,000 of your Estate and all of your personal belongings. The remainder (anything over £250,000) would then be split 50/50, with your spouse receiving 50% of this and the remaining 50% being divided equally between your children.
But if you don't have children or if the value of your estate is under £250,000 then your estranged spouse would inherit everything.
Set out your wishes by making a Will
The best way to make sure that your wishes are clear is to state them in a legally valid Will. If your Will is properly drafted and correctly signed, then, on the face of it, your estate should be distributed as you have requested, leaving the Rules of Intestacy out of the matter altogether.
You can decide exactly who you want to benefit from your estate and you can state exactly what you would like them to receive. You may still choose to include your ex if you wish, it may just be that you don't want them to be the main beneficiary of your estate.
How does divorce and remarriage affects a Will?
It's very important to note that when you do divorce your ex, this actually has a direct impact on any Will that you already have in place. Your Will doesn't become void upon divorce, but your Will is treated as if your ex has died before you for the purposes of them being named as a beneficiary, trustee or executor.
If you did still want your ex to benefit or be appointed in some way from your estate then you should make a new Will. This can be drafted to ensure that your ex can still benefit or be appointed as an executor or trustee, regardless of the divorce.
Another point to note is that the act of marriage makes any previously existing Will automatically void. So if you go on to remarry, then any Will that you have previously put in place will become void at this point. If you are planning to get remarried but don't want your new Will to become void then you can make sure that this is drafted in 'contemplation of marriage,' so that your new Will recognises and names the person that you intend to marry.
At Co-op Legal Services our Will writing advisors can discuss your circumstances and answer any questions you have. We provide Fixed Cost Wills, once we have provided you with a written quote for the agreed work to be done, that price will not change.