If you are in the process of divorcing your spouse or civil partner, then you should be aware of the effect that divorce will have on your Will.
Whereas a marriage will automatically revoke any Will that you had previously made, a divorce will only affect the clauses dealing with your soon to be ex-spouse or civil partner. If the testator (the person making the Will) divorces by way of a decree absolute, or ends a civil partnership by way of a final dissolution order, his or her Will takes effect as if his former spouse or civil partner had died before him, unless there is a contrary intention expressed in the Will. Contrary to popular belief, the Will is not revoked in its entirety. The testator’s estate will then pass to any substitute beneficiaries named in their Will, or if there are none, according to the laws of intestacy.
It is important to ensure that, if you are in the processing of divorcing or ending a civil partnership, you (1) update your Will and (2) deal with any property owned in joint names in order to avoid any undesirable consequences should you die before the separation is finalised. Perhaps you own your property as joint tenants with your spouse or civil partner. Even if you were to separate, upon your death your interest in said property would automatically pass to the surviving joint tenant by way of the laws of survivorship, outside of the terms of your Will. In this instance it would be recommended to sever your joint tenancy, converting your beneficial interest into a tenancy in common. If you were then to die before your separation was finalised, your interest would pass in accordance with the terms of any newly updated Will.
Following a divorce, it is usual for the testator to want to exclude their former partner from any benefit of their estate. It is important to understand that the terms of the divorce will take precedence over any declaration in the Will. Nevertheless, under the Inheritance (Provision for Family and Dependent’s) Act 1975, applications may be made to the court by the former spouse who feels that they have not been afforded reasonable financial provision. In order to attempt to avoid a claim of this type a legacy may be made to the former spouse in any new Will for their ongoing maintenance.
If you have any children under the age of 18, then you should ensure that your new Will deals with the appointment of a Guardian should both parents die. In the event that one parent dies, any minor children shall continue to reside with the other parent who (generally speaking) would continue to have parental responsibility following the divorce. It is important to take legal advice over the appointment of a Guardian and in order to avoid any difficulties they should be coordinated with the other parent so that either the parents appoint the same Guardian, or the appointment does not come into being until the death of the second parent.
Should you have any questions in relation to making a Will, then our Private Client department will be happy to help. In this instance please do not hesitate to call Laura Sentkovsky on 0207 703 5034. For any divorce related issues, our Family Lawyer, Joanna Toloczko, can assist.
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