Going through a divorce is unpleasant for both parties and there are a lot of difficult decisions to make and issues to consider at that time, which can seem overwhelming. It is important, however, that you update your Will (or make a Will for the first time) as soon as you take the decision to divorce. You do not need to wait for financial matters to be agreed or for the decree absolute to be granted.
Throughout this note, all references to a person’s ‘spouse’ includes reference to their civil partner also.
If You Already Have a Will
All of the provisions of the Will remain valid until the decree absolute is granted. If your Will leaves everything to your spouse, they will still inherit if you die before decree absolute. This is unlikely to be what you want. By updating your Will at an early stage of the divorce, you can ensure that your children or other chosen beneficiaries inherit your property, rather than your spouse.
Of course, you will not know how the matrimonial property will ultimately be divided at this stage. However, your Will can be drafted in general terms, without specifying any particular assets.
If You Do Not Have a Will
If you do not have a Will, then the intestacy rules will determine how your property is divided on your death.
Until the decree absolute has been granted, your spouse will be the main beneficiary under these rules. If you have children, your spouse will be entitled to all of your personal possessions, a legacy of £250,000 and half of the remainder (if any). If there are no children, your spouse will receive the whole of your estate. Again, this is unlikely to be what you want.
By making a Will, you prevent these rules from taking effect and you can direct your property to the beneficiaries of your own choosing.
Jointly Owned Assets
It is likely that you own property jointly with your spouse.
Assets held jointly will usually pass automatically to the survivor, irrespective of the terms of any Will or the provisions of the intestacy rules.
If your house is owned a ‘joint tenants’ rather than as ‘tenants in common’, automatic transfer to the survivor will apply, something which you will want to avoid, if you are in the course of a divorce.
It is possible to convert ‘joint tenancy’ to ‘tenancy in common’ so do seek professional advice at the earliest opportunity. This will ensure that your share of joint property (particularly your house) passes in accordance with your Will.
Effect of Divorce on Wills/Intestacy
Your divorce comes into effect on grant of the decree absolute.
Divorce does not revoke the parties’ existing Wills (unlike marriage, which automatically revokes any existing Will, in most circumstances). However, if your former spouse is appointed as an executor or trustee of your Will, this appointment will no longer take effect.
Similarly, any property left to your former spouse will pass as if the spouse had died on the date of the decree absolute. For example, if your Will leaves everything to your spouse or (in the event that your spouse has predeceased you) to your children, your former spouse will receive nothing and your property will pass directly to your children.
The position is similar if you do not leave a Will. For the purposes of the intestacy rules, a divorced spouse will be treated as having died on the date of decree absolute (and so will be bypassed in favour of children or other relatives).
Judicial Separation
An order of judicial separation does not affect the Wills of the parties. Therefore it is essential that new, up to date Wills are made.
But for the purposes of intestacy, a decree of judicial separation means that the separated spouse is treated as having died on the date of the decree.
For more information on Wills for the Divorced or any other private client matter, please contact rhw’s Wills, Trusts and Estates team via email
Alternatively call rhw Wills Solicitors in Guildford on .