Wills and divorce solicitors
Our specialist team of Will solicitors can help you with the preparation of your Will after a separation or divorce by offering friendly professional legal advice and working in conjunction with our divorce and family law team. To speak to the Wills team at OTS Solicitors call us on 0203 959 9123 or complete our online enquiry form.
Wills and separation
It is often thought that if you separate from a spouse or civil partner that any Will is no longer valid or that any gifts made to your spouse or civil partner do not take effect. That is not the case.
Until your divorce or the dissolution of your civil partnership is finalised your existing Will is still valid. Whilst you are separated and not legally divorced your spouse or civil partner will still inherit if they are named as a beneficiary in your Will.
You may have also appointed your spouse to act as an executor of your Will to manage your estate and financial affairs after your death. If you have separated from a spouse or civil partner it is unlikely that you still want them to inherit all or any of your estate or to act as an executor.
Wills and divorce
The decision to start divorce proceedings or the fact that you are responding to divorce or dissolution of civil partnership proceedings brought by your estranged spouse or civil partner does not make any existing Will or bequest to your spouse or civil partner invalid.
It is only when your decree absolute of divorce or your dissolution of civil partnership is pronounced that the court proceedings have an impact on your Will and on any legacy to your spouse or civil partner. As some couples stay separated for months or even years before starting divorce proceedings and because court cases can take months to complete, the preparation of a new Will after a separation should be a priority for every separated couple.
The effect of a divorce on your Will
When your divorce is finalised and you have your decree absolute, for Will purposes, your former spouse or civil partner is treated as if they died on the day the decree absolute or dissolution of civil partnership was granted by the court. This means that they will not act as executor to your Will or inherit anything under your Will.
A divorce does not therefore invalidate the whole Will or result in any pre-marriage Will being revived and reinstated.
You may think that it is all right to do nothing about your Will because you have your decree absolute of divorce or dissolution of civil partnership but that is not correct. It is always best to take professional legal advice to look at your current personal and financial circumstances and to prepare a new Will that is fit for purpose and is also tax efficient given your change in marital status and loss of some inheritance tax reliefs.
For example, if the Will says all your estate is left to your spouse but makes no provision for what will happen to the money if they do not inherit from you then the bequest to your spouse will pass in accordance with intestacy laws. Intestacy provisions can result in some unintended consequences as, for example, any cohabiting partner would receive nothing. If your Will says what should happen to your money if your spouse has predeceased you (as that is how a spouse is treated legally on decree absolute of divorce) then the money left to your spouse will be passed to the next beneficiary who is entitled to it, in accordance with the terms of your Will.
Joint ownership of property after separation or divorce
You can own property with a spouse or civil partner in one of two ways:
Joint Tenants – when the first one of you dies the survivor automatically becomes the owner of the property. This means that property held as joint tenants cannot be left in a Will as it passes straight to the surviving owner. It is common for married couples to buy property as joint tenants. If you are going through a separation or divorce one of your first considerations should be whether the joint tenancy should be severed so if you die your share of the property will pass under your Will. It is important that your Will is brought up-to-date if you sever the joint tenancy;
Tenants in common - Tenants in common own property jointly but your share in the property passes by your Will (or under intestacy rules if you have not made a Will). This type of joint ownership is often preferred after a separation or divorce. You do not need the co-owner’s agreement to sever the joint tenancy. If you elect to sever the joint tenancy it is important that you then update your Will to make sure that your share of the property passes in accordance with your wishes, in light of your separation or divorce.
Wills, divorce and inheritance claims
Making a new Will can help prevent potential claims being brought against your estate under the Inheritance Act by either a separated spouse or civil partner or by a divorced spouse or civil partner who is still financially dependent on you.
If you do not want your estranged or former spouse or civil partner to inherit from your estate after your death it is best to take expert legal advice on the most effective way to minimise the risks of them doing so.
If future financial security, in life and death, is a priority for you it may be possible to negotiate a clean break financial court order in divorce proceedings. If that is not feasible you may want to look at the option of an insurance policy to cover any spousal maintenance or dependency claim made against your estate or have your Will solicitor prepare your new Will in a way that enables your executors to have flexibility to negotiate with your estranged partner or former spouse to best protect the interests of your children and any other beneficiaries.
How can OTS Solicitors help?
Whether you have just separated from your spouse or civil partner and want information about a temporary Will and advice about ownership of joint property or if your divorce has been finalised and you need to plan for your new future, OTS Solicitors can help by:
Preparing a new Will for you;
Preparing powers of attorney for you to reflect your new personal circumstances;
Looking at ways to minimise any claims against your estate by an estranged or divorced spouse who may have potential claims unless you secured a clean break financial court order in your divorce;
Protecting your children by ensuring appropriate executors and trustee are appointed in your Will and that your child’s legacy is safeguarded.