14 Feb 2019 Posted in Divorce & Separation Wills & Estate Planning 

Married, separated, divorced - what happens to a Will?

David Whitworth Posted by David Whitworth, Partner and Head of Wills, Trusts & Probate

Married, separated, divorced - what happens to a Will?

Many people don’t realise that any change in marital status will change the effectiveness of a Will. If you don’t keep your Will updated as life changes, you could be in danger of leaving loved ones without the inheritance you intended and a family dispute over your estate.  

Marriage

The law in England and Wales is clear; if you marry, your existing Will is automatically revoked, unless it includes a special reference to the intended marriage. This means that if you die without making a new Will after you are married, your estate will be subject to inheritance laws called The Intestacy Rules, and the law will decide who should inherit from you.

Under intestacy rules, if you are married with children and the estate is under £250,000 then your spouse would receive your entire estate. If you are married with children and the estate is over £250,000, your spouse would receive £250,000 plus personal belongings. The remaining balance would be split between your spouse and your children - your spouse would receive 50% and your children would equally share the other 50%, inheriting this at the age of 18.

Divorce

If you divorce, a Will made prior to divorce remains valid but your ex-spouse cannot act as an Executor or Trustee of your estate and would not benefit from it. Once a Decree Absolute has been issued, whatever your ex-spouse was set to inherit would then be passed on under your Will as if your ex-spouse had died. This may not be what you would want so it is important to update your Will when you divorce. If everything had been left to your spouse with no other beneficiaries named, then your estate would be dealt with as if you had died without a valid Will in place at all, under the intestacy rules.

Separation

If you are separated but not divorced and therefore still legally married, your Will remains valid. This means that if you die, your spouse will be entitled to inherit whatever is set out in the Will. In many cases this would mean they would inherit your entire estate. Unfortunately, many contested Wills and family disputes over inheritance are as a result of couples separating but not updating their Wills. If you don’t want your spouse to benefit from your estate, but are not legally divorced, you must write a new Will that reflects your current wishes.

Remarriage

If you remarry, your Will is treated in the same way as it would be the first time you married, it automatically becomes void and the Intestacy Rules would apply. At this point you may have children from a previous marriage and so it is essential that you write a new Will as soon as you remarry. If you die without making a new Will and your estate is worth over £250,000, your new spouse will inherit £250,000 plus 50% of the remaining value of the estate, and the other 50% will be shared equally between all of your children. This is another potential scenario for inheritance disputes and family rifts, because if the main asset is your family home in which your new spouse lives, issues regarding ownership arise. You may have children from both a previous relationship and a new relationship, so you must ensure your Will is clear about how each of them should inherit.

For peace of mind you should write a Will in advance of a marriage and keep your Will up-to-date whether you are married, divorced or about to walk down the aisle again.  Our team of specialist solicitors are on hand with expert advice tailored to meet each client’s individual needs. We will advise you how best to set out your wishes in a Will, and how to effectively plan your estate to take advantage of the available inheritance tax reliefs and exemptions. 

If you would like to make an appointment to discuss your Will, please call 01225 485700 or email hello@mowbraywoodwards.co.uk 

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David Whitworth

David Whitworth

Partner and Head of Wills, Trusts & Probate

01225 369002

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