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Making a Will whilst going through Divorce or Dissolution

Unfortunately it can take a significant amount of time from deciding to separate to receiving your decree absolute/final order. During this time you are still considered to be married – this can be beneficial in terms of things like pension rights if one spouse were to die before the divorce/dissolution is finalised. However there are also problems that arise if you are legally married but emotionally separated.

The risks of keeping your current Will

As mentioned above, the fact that you are divorcing or dissolving a civil partnership does not affect your Will. If you leave everything to your partner and you die the day before the decree absolute or final order is granted then your partner could receive their full entitlement under your Will. Often spouses leave their entire estates to one another on their death, meaning that reviewing a Will on separation is vital to protect your assets in the event that you pass away before decree absolute or the final order is made.

What should you do next?

The first thing to do is review your Will. If your wishes have changed then it is important to amend your Will or prepare a new one. Please contact our Wills, Trusts and Probate team to arrange an appointment.

Whilst many people would consider waiting until their divorce or dissolution is finalised to make a new Will, this is not necessary. Spouses have no automatic right to receive anything on your death, with the exception of jointly owned assets such as a property held as joint tenants or a bank account in joint names.

If you don’t have a Will

If you die without having made a Will then the administration of your estate and the beneficiaries will be governed by the intestacy rules. This is a hierarchy of people who are entitled to either administer your estate, or to receive a share of it. If you die whilst you are married, your spouse will receive at least £270,000 plus half of your remaining estate and all of your personal chattels. This is irrespective of whether you are going through divorce or dissolution proceedings. They may even receive all of your estate if you don’t have children. For this reason we would recommend that you consider making a Will as soon as possible after making the decision to separate.

If you have children then it is essential to consider making provision in your Will for the guardianship of your children in the event of your death. In some instances parents may not automatically gain custody of the children on the death of the other parent. This can be dealt with in your Will.

When instructing a lawyer regarding your Will, you will also need to be aware of potential claims that can be brought under the Inheritance (Provision for Family and Dependants) Act 1975. This allows certain groups of people, including spouses, ex-spouses and those who are financially dependent on the deceased, to challenge the Will if they feel that it does not provide them with any or enough inheritance.

If you would like to discuss making or changing your Will, or how to mitigate potential claims against your estate following your death, please contact your Family lawyer who can put you in touch with our Wills, Trusts and Probate team.

The above information is correct as at 4th April 2023.