News

What happens to my Will after divorce?

Table of Contents

It’s important to update your Will following separation, as failing to do so could have serious consequences.

Going through a divorce is a very difficult time for both parties and there is usually a lot to think about, but it is important that consideration is given to updating your Will after divorce or separation. This can be done at any time following the breakdown of a marriage – you do not need to wait until your marriage is dissolved.

Depending on your current situation, what happens to your assets after divorce or separation could be very different. We’ve outlined some of the more common situations that we come across below. If you’d like information about on your specific situation, please contact our Wills & Probate team.

I have separated from my spouse, but we are not yet divorced – what happens to my Will?

If you separate from your spouse but you are still legally married, then your Will remains valid until the decree absolute is granted. This means if you were to pass away and your Will leaves everything to your spouse, then your spouse can still inherit under your Will.

I have separated from my spouse, but I do not have a Will. What happens now?

If you die and you have not already made a Will, your estate will pass onto your next of kin. That could be your spouse if you are still married.

Your estate will ultimately pass in accordance with the intestacy rules. This will also depend upon what your estate is worth and whether you have children.

Therefore, it is important for you to think about making a Will to ensure that your estate will pass on to the people you want it to.

What happens to my Will after divorce has been granted?

The decree absolute is the final stage of the divorce process and as soon as the decree absolute has been granted by the court, your marriage is dissolved. If you have gifted anything to your spouse under the terms of your Will after divorce, then your spouse will be treated as having died on the date your marriage legally ended.

If you pass away, and you have not named anyone else as a beneficiary of your estate other than your spouse, then you will be treated as having died without a Will, unless contrary intention appears in the document. This means that the law will decide who can inherit from you. If this happens, then there is a risk that your estate will not go to who you want it to go to.

Will a financial settlement have an impact?

It is important when you get divorced to consider the resolution of financial matters between yourself and your spouse.

When you are married there are various claims you can make against each other. A clean break order can close those claims down in ‘life and death’, so this can of course protect you against any claims your spouse might make against your estate. However, it is still important to ensure that you update your Will because a clean break is not suitable for every case.

Severing my tenancy – what does this mean?

If your property is owned in the joint names of yourself and your spouse, then it will be owned as what is known as “beneficial joint tenants”. This means that if you were to pass away, your interest in the property will pass under the rules of survivorship and your spouse would automatically inherit your share, irrespective of the contents of any Will that you may make. Vice versa, should your spouse pass away, then their share would automatically pass to yourself.

If you wish to prevent this, then it would be possible to sever the joint tenancy. This would mean that as opposed to owning the property as beneficial joint tenants, that the property would be owned as “tenants in common” in assumed equal shares, and the rules of survivorship would not apply. In the event of your death, your share would pass in accordance with the contents of your Will. Likewise, the same would apply in relation to your spouse’s share in the event of their death.

Should you choose to take this option, it is imperative that you make a Will dealing with your share in the property, as in the event that you were to pass away intestate (not having made a Will), then under the intestacy rules your spouse would inherit your share in any event.

Contact the Wills experts

Overall, it is imperative that you seek advice regarding your Will after divorce or separation. The above is only a guide and further advice should be sought from one of our solicitors who can assist you further.

If you want to ensure that your estate is divided according to your wishes, please do not hesitate to contact our head of Wills and Probate, Alex Rivers, or to discuss divorce matters, Lauren Jones.