Should I also think about making a new Will if I am divorced or my civil partnership has dissolved?
When thinking of getting married or entering a civil partnership, alongside the hectic preparations and daydreaming about the honeymoon getaway that will follow, writing a Will would be the last thing on your mind.
However, it is not commonly known that a valid Will that you have in place will be revoked automatically upon marriage and a civil partnership.
When parties bring wealth into a marriage or civil partnership, unless they enter into a pre-nuptial agreement or have some other form of arrangement in place, your assets may not be protected on death or separation.
By default, if you do not prepare a new Will or make a Will in contemplation of your marriage or civil partnership, the Rules of Intestacy will determine what happens to your assets on death.
RULES OF INTESTACY
If you do not have children, your entire estate would pass to your spouse or civil partner.
In the event you do have children, then:
- The first £250,000 of your estate will automatically pass to your spouse or civil partner; and
- The remainder will be split equally between any children you have and your spouse or civil partner.
Your spouse or civil partner will therefore be entitled to the first £250,000 and half the remainder estate.
If you have children from a previous relationship, marriage or civil partnership and are going into a new marriage or civil partnership, then they may lose their entitlement to your estate.
If you are considering getting a divorce or ending your civil partnership, the rules will be different. You should make a new Will as soon as you separate as, until a Decree Absolute or Dissolution Order has been ordered, you will still be legally married or in a civil partnership. This means any previous Will you have made will remain valid.
If you die prior to the Decree Absolute or Dissolution Order being made, your spouse or partner may end up automatically inheriting your assets, subject to the Will (if any) which was previously made. Your Will would not be rendered invalid or void once your divorce has been finalised. Instead, when the Decree Absolute or Dissolution Order is made, any mention of your former spouse or partner in an existing valid Will would be considered as if they had predeceased you. In this situation, any gift to them would fall back into residue for the benefit of your beneficiaries.
Other eventualities which are important to consider:
- If you had left everything to your former spouse or civil partner and do not have any children, or a valid Will in place, then on death, the Rules of Intestacy would dictate who receives the assets. This could be your parents, siblings and may not be in accordance with your wishes, so it is important you safeguard your interests as soon as possible.
- If your former spouse or civil partner had been named as an Executor or Trustee, then once the Decree Absolute or Dissolution Order is made, the Will would treat them as if they had predeceased you.
- If you have named your former spouse or civil partner as a Trustee of a trust for the benefit of you or any child(ren) or as the guardian of a child or children, then the trust will fail.
- If they do not have parental responsibility and you do not have a substitute guardian named in your Will, this would also be a good reason to have it revised.
- If you are divorced or your civil partnership has dissolved, then you should consider making a Will or updating your current one.
As divorce does not invalidate a lawful Will, you do not have to wait until the Decree Absolute or Dissolution Order is made to prepare a new one.
The above does not prohibit your spouse, civil partner or any children you have in making a claim under The Inheritance Provision for Family and Dependants Act 1975, however, they will need to satisfy the Court they are entitled to make such claim.
If you would like further information on making or updating a Will, or currently going or been through a divorce or dissolution of a civil partnership, or unsure what your current position is, please do not hesitate to get in touch with our specialist team by telephone on 020 7052 3545 or by email at email@example.com
This article is for general information only. Its content is not a statement of the law on any subject and does not constitute advice. Please contact KaurMaxwell for advice before taking any action in reliance on it.