How a relationship breakdown could affect your will

Despite a will being one of the most important documents a person will ever write, more than half of Britons do not have one.

A valid will lets you direct what happens to your money, property and possessions after your death.

The breakdown of a marriage/civil partnership or relationship can be a difficult and turbulent time and the last thing that most people think about is what would happen if they were to die during this time.

However, it is vital that you consider what would happen and what you would want to happen, as often these are two very different things. A new or updated will can give you peace of mind that your wishes will be followed and will allow those whom you care about to be looked after.

Separation

If you are married or in a civil partnership and separate, by mutual agreement or not, the effects on a will or intestacy (where there is no will) are different to when you divorce.

Because in law you are still married or in a civil partnership, the other person would be entitled to inherit through your will or by the rules of intestacy regardless of how long you have been living apart or separated. The only way to prevent this would be to write a new will, setting out your wishes.

If you have no will, then your spouse/civil partner can still inherit via the rules of intestacy, which dictate who inherits where there is no will. The rules can become quite complex and depend on your family circumstances and the size of your estate.

However, the basics are as follows:

  • If you are married/in a civil partnership with no children, your spouse/civil partner inherits everything;
  • If you are married with children and your estate is worth more than £250,000, then the first £250,000 and personal chattels pass to your spouse/civil partner. The rest is divided, with part going to your spouse/civil partner and the other part to your children; If you are unmarried or not in a civil partnership, then your partner will not be provided for at all under the rules of intestacy, and they would get nothing. The only way to be certain about what will happen if you die is to make a will or to ensure that your current one still applies to your circumstances. Divorce The Wills Act states that, once a marriage or civil partnership is dissolved or annulled, any gifts left in a will to the former spouse/civil partner shall pass as though that person had died on the date of the formal dissolution or annulment.
  • This usually means the gifts go to the residuary beneficiaries, which can mean that, where the whole estate  has been left to the former spouse/civil partner, it is as if you died intestate. In such circumstances, and the rules of intestacy will determine how your estate is distributed. Once you are divorced or your civil partnership has legally ended, your spouse/civil partner cannot inherit under the rules of intestacy.
  • Ending a marriage by divorce or annulment, or the legal dissolution of a civil partnership, does have an effect on your will, unlike a separation.
  • Intestacy rules are more detailed than this, and jointly-owned assets may pass automatically to the surviving party.

It is important to note that this rule only applies when the decree absolute has been granted and the divorce is finalised.

Divorce can often take time to finalise and standard practice is to not apply for the decree absolute until all other matters have been finalised. This can take years in some cases. During the period between applying for a divorce and the decree absolute being granted, you are open to the same risks as if you were merely separated.

As with separation, the best option would be to seek legal advice and to prepare a will or to revise your existing one which caters for your wishes.

Children

Another aspect that is often overlooked during a separation or divorce is who you would want to appoint as a guardian for any minor children you have, should the worst happen. There is sometimes an assumption that godparents, should there be any, will take responsibility. However, this is not a legal appointment.

The appointment of a guardian will not usually take effect where there is a surviving parent.

However, where there is a residence order in favour of the parent appointing the guardian following divorce proceedings, the appointment will take effect on that parent’s death. In all cases, appointing a guardian is an important part of your will when there are minor children.

 

Divorce can often take time to finalise and standard practice is to not apply for the decree absolute until all other matters have been finalised. This can take years in some cases. During the period between applying for a divorce and the decree absolute being granted, you are open to the same risks as if you were merely separated.

As with separation, the best option would be to seek legal advice and to prepare a will or to revise your existing one which caters for your wishes.

 

 

How we can help

Planning for the future is something everyone should do, but when your circumstances are changing through divorce, annulment or separation, it is crucial that you seek professional guidance to protect your estate. Please contact our experts Laura Stansfield, Sue Darlington or Susanne Furness in our Wills, Probate & Planning for the Future department to discuss how one of our team of experts can help guide you through this process.

Email:

lstansfield@bromleys.co.uk; sdarlington@bromleys.co.uk  sfurness@bromleys.co.uk

Tel: 0161 330 6821

Alternatively, you are welcome to attend any of our free legal surgeries. Please click here for dates and times – No appointment necessary.

The contents of this article are intended for general information purposes only and shall not be deemed to be, or constitute legal advice. We cannot accept responsibility for any loss as a result of acts or omissions taken in respect of this article.