Wills and Divorce or Separation
Divorce and separation can be very stressful and upsetting. If your relationship with your spouse breaks down, you, your home, your assets and your family circumstances are all affected. The wishes you set out in an existing Will may no longer be appropriate and you may want to reconsider the gifts you originally intended for your former spouse’s extended family or gifts to his or her children from another relationship.
If you are going through a divorce or separation it is important that you plan for your future by reviewing or making a Will.
Until the Court issues your decree absolute, your former spouse would still be a major beneficiary under the terms of your Will or under the intestacy rules if you have not made a Will. Technically, when a marriage is ended by a court order (either a divorce or annulment) your will is not void or invalid – but any gift to a former spouse takes effect as if he or she had died on the date the decree became absolute. Often this means the gift falls back into residue for the benefit of the residuary beneficiaries.
If your current Will leaves everything to your former spouse, with no other person named as a substitute if he or she dies before you, then the intestacy rules would apply once you are divorced.
If you are in another relationship after parting from your spouse, you should think about making a Will providing for any new responsibilities. If you are not married your new partner cannot inherit from you unless you make a Will providing for him or her, and may have to go to Court to get provision from your estate.
The appointment of a former spouse as an executor or trustee will also fail once divorce is finalised. If a former spouse is appointed as sole trustee of a trust for the benefit of the children of both parents, the trust may fail.
It can take many months (in rare cases, years) for a divorce to be finalised so it is sensible to make a new Will immediately, especially if your former spouse was to receive all or part of your estate or was appointed as a sole trustee. You may prefer to make a short term or temporary Will simply to change the provisions of an existing Will, with a view to preparing a ‘permanent’ Will once all the financial settlement details have been agreed and put in place. However, you should consider making your new Will during the separation to be sure that your wishes are set out clearly and reflect your changed circumstances. It is not necessary to wait for the decree absolute.
There are many excellent organisations that can help you through the legal and emotional aspects of divorce and separation: