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Partner and Head of Family Law, Rugby
The simple answer is – yes!
Marriage, separation and divorce can have unintended consequences on how your estate passes when you die, whether you have a Will or not.
Many people don’t realise that marriage revokes your Will unless it is specifically stated to be made “in contemplation of marriage”.
This can be particularly problematic in the case of second marriages where there are children from the first marriage. Any Will that makes provision for the children but does not mention the impeding marriage becomes invalidated, leaving the deceased parent’s assets to be distributed in accordance with the intestacy rules (a law which sets out the priority order regarding who can benefit from an estate).
When deciding to get divorced, many people think about their Will but decide that they will update it once the decree absolute (the document which means that you are legally divorced) has been received. Unfortunately, I have had clients who passed away before their divorce was finalised –whilst we don’t want to think about it, we simply cannot know when we will pass away and it is important to plan for this by way of a Will as early as possible.
If you are starting the divorce process then you should consider updating your Will to reflect your wishes as soon as possible. If you don’t then you must remember that you are still legally married throughout the entire divorce process until the decree absolute is received. That means that your spouse would benefit in accordance with your Will (or the intestacy rules – see below) even if you had been separated for a number of years.
Once the divorce has been finalised, your Will treats your ex-spouse as if they had died before you. However, that doesn’t always reflect a person’s wishes – for example, what if you wanted to give your ex-partner some money to help look after the children whilst they are growing up, or just because you have remained good friends? This wouldn’t be accounted for in your Will.
In some instances, after getting divorced it is still possible for your ex-spouse to bring a claim against your estate if they feel that they haven’t been sufficiently provided for by your Will or on intestacy (dying without a Will). This is something that should be carefully discussed with both the solicitor dealing with your divorce and the solicitor dealing with your Will.
What if I don’t have a Will?
As mentioned above, the intestacy rules determine how a person’s estate is distributed where they do not have a Will. The rules also dictate who can manage the estate administration.
Where a person is married, their spouse receives the first £270,000 from the estate plus personal chattels, with the remainder of the estate (if any) being split equally between the spouse and any children. If there are no children, the spouse receives everything. This is the case even if you are separated but still legally married.
Many people do not make a Will because they want their spouse or children to receive their entire estates, and they believe that the intestacy rules are sufficient for their circumstances. Whilst that may be the case, the intestacy rules are inflexible and cannot account for circumstances such as vulnerable beneficiaries, benefitting any charities or clubs that you would like to support, or estranged family members who may benefit by virtue of their blood relationship with you.
Making a Will is something that almost everyone puts off, but if you want to make your death as smooth as possible for your loved ones then they are an absolute necessity.
If you would like to discuss making or changing your Will in contemplation of a marriage or divorce, please contact the Wills, Trusts and Probate team on 01788 557722.