There are many factors that may affect your will if you are in the process of divorce, and/or considering remarrying. Associate solicitor Louise Daniel, from WHN’s Haslingden office, answers some key questions regarding changing your marital status and how it can affect your will. She also highlights the importance of ensuring your will is up to date.
When it comes to life-changing experiences such as getting remarried, the last thing you’re probably thinking about is updating your will. Yet, if your circumstances change, it is extremely important to update your will or draw up a new one, to ensure your final wishes are carried out and that your estate is passed on to the people you wish to inherit.
I am filing for divorce, should I update or change my will?
If you are considering separating, or divorcing your spouse, you should also consider making a new will. Should you die before the divorce is finalised and you have not updated your will, most of your estate may still pass to your spouse, as in the eyes of the law, even if you are separated and in the process of divorce, if a final order, (formerly called the Decree Absolute,) has not been granted, you are still legally married.
Therefore, during this period, if you make a new will, you can clearly state who you would like your assets to pass to on death. Although you may still wish your spouse to benefit, should you die before your divorce is finalised, making a new will gives you greater control over what actually happens.
The final order has been granted on my divorce, does that change the status of my will?
The granting of the final order in the divorce process influences any will that exists at that time.
Upon the granting of your final order, any appointment in your will of your former spouse as executor or trustee will be ignored, and any gifts made to him or her automatically lapse. So, for example, if you made a gift to your spouse of £10,000 in your will, once you are divorced this gift will be ignored.
This applies unless you have expressly stated in your will, that your spouse is still to play a role managing your estate or be a beneficiary.
I plan to remarry, does that revoke my existing will?
Once a final order of divorce has been made, a person is then free to remarry. If you do remarry, you need to be aware of the implications this may have on your will and how it may affect your beneficiaries and dependents under the inheritance laws.
If you remarry, your existing will is revoked, and will not be taken into account upon your death.
This means that, unless you have drawn up a new will in contemplation of your marriage, intestacy laws will apply to your estate on death, meaning those whom you wish to benefit from your estate may not benefit at all. This can be costly to deal with and often results in an outcome where your actual wishes may not be honoured.
What are the intestacy laws?
Intestacy laws state if a deceased person is married at the time of their death and has children, (the children may not necessarily be from the surviving spouse), then the surviving spouse will receive the first £322,000.00 of the estate and the rest of the estate is divided equally between the spouse and the children of the deceased – in equal shares. The shares are held in trust until the children reach the age of 18.
Where the deceased person is married but does not have any surviving children or grandchildren, their entire estate will pass to their surviving spouse.
The intestacy laws in this instance are quite draconian and inflexible and do not consider modern family life. If you knew you intended to remarry when you made your will, this situation can be avoided by expressly stating that your new marriage would have no effect on the wishes in the existing will.
Overall, it is vitally important if you are considering divorce, or contemplating remarriage, to seek expert legal advice to ensure that your surviving spouse, as well as any children from any previous marriages, are appropriately provided for and to hopefully avoid difficult inter-family arguments after your passing.
How do I ensure my ex-spouse cannot make further financial claims on my estate?
Either during or after the divorce process, it is advisable to resolve financial matters further to your divorce. If this can be achieved via an agreement that can be embodied into a court order – known as a consent order – which will set out the agreements reached and if appropriate, include a clean break financially between the parties, which means neither your or your ex-spouse can make a financial claim against each other in the future.
Under what other circumstances should I update my will?
Throughout your life, circumstances change and it’s surprising how quickly a will can become outdated, so if you made your will more than three years ago, it would be wise to have a think about what has changed between then and now. We cover this in further detail in our blog post: Five reasons why you need to update your will.
Louise Daniel has expertise in all areas of family law, with specialisms in divorce, separation and financial cases. Should you wish to seek advice regarding your divorce and subsequent remarriage please contact Louise on 01706 213356 or by emailing louise.daniel@whnsolicitors.co.uk
