Depending upon the size of your estate and family makeup, don’t assume that your entire estate would go to your spouse or civil partner. Stephen Parr explains the complexities.
Does getting married invalidate my Will?
When you marry, any existing Will is automatically revoked (cancelled) and becomes no longer valid. If you don’t make a new one, then when you die the law of intestacy decides how your assets will be divided.
Any marriage will automatically revoke your Will unless you’re making the Will in anticipation of marriage.
A Will made in anticipation
A Will can be made in contemplation of marriage. As long as the Will on the face of it states that it is made in contemplation of marriage and the marriage is to a named person, then if you subsequently marry that person the Will won’t be invalidated by the marriage
What happens if I die without a Will?
The intestacy rules apply if you die without making a Will.
The rules state that your entire estate will pass to your surviving spouse if you have one and it’s worth under £250,000. If you have a surviving spouse but no children, the entire estate will pass to the spouse even if it’s worth over £250,000.
If you’re married and die with an estate worth more than £250,000 though, the first £250,000 goes to the spouse as well as half of the remainder, with the other half going to any children.
This can sometimes cause difficulties, for example if the house is in the sole name of the deceased and is worth over £250,000 but there are limited other assets.
How does it affect co-habiting couples?
The law in relation to co-habiting couples is very different from the law in relation to married couples or couples in civil partnerships. There is no automatic right to benefit from your partner’s estate simply due to the fact you have been in a relationship with them, regardless of the length of the relationship.
Making a Will would clearly set out your wishes as to who should benefit from your estate should you die. If you want this to be your partner, then your Will can stipulate this.
Will getting divorced invalidate my Will?
If you are considering separating or divorcing your spouse, you should consider making a new Will otherwise, should you die before the divorce is finalised, your estate will pass under your existing Will and/or the Rules of Intestacy even if you are separated.
Until your decree absolute has been pronounced, you are still legally married despite the fact you may be in the process of divorcing your spouse.
If you make a new Will you can clearly state who you would like your assets to pass to upon death.
We appreciate that while you are divorcing you may still wish your spouse to benefit should you die, but by making a Will you give yourself greater control over what will happen should you die.
After divorce
The granting of the decree absolute has an effect on any Will that exists at that time. Unless you expressly stated in your Will, that the following is not to happen, then when your decree absolute is made, any appointment in your Will of your former spouse as executor or trustee is ignored and any gifts made to him or her automatically lapse.
What this means is, if, for example, you had made a gift to your spouse of £10,000 in your Will, once you are divorced this gift will be ignored.
Re-marriage
Should you subsequently get re-married following your divorce, any existing Wills are revoked and so will not be considered when you pass away.
This can be avoided if you knew you were going to re-marry when you made your Will and expressly stated that your re-marriage was to have no effect on it.
For further advice on any family law matter, call Stephen Parr on 01706 213356, or email him at stephen.parr@whnsolicitors.co.uk
