Going through the process of a divorce or dissolution of a Civil Partnership is never a particularly pleasant time. Emotions will often be running high, coupled with the dual stress of the failure of a relationship and navigating possible court proceedings.
It is tempting to keep focused on the final outcome and the formal end of the marriage. During this time perhaps the last thing on your mind would be preparing a new Will or considering how your estate would pass.
However, given the major change to your family life, ensuring your estate planning is up to date is extremely important. Failure to adequately plan could result in your estate passing inadvertently to someone you would not intend to benefit.
Points to Consider
If you had prepared a Will prior to entering into the marriage then you should check whether this has been invalidated. Section 18 (1) of the Wills Act 1837 provides that entering into a marriage (or Civil Partnership) revokes any existing Will. The only exception to this is where the Will was specifically made in expectation of that marriage.
If the Will has been revoked by the earlier marriage and no new Will has been executed then if you were to pass away you would die intestate. Section 46 of the Administration of Estates Act 1925 sets out a series of rules – known as the Intestacy Rules – which confirms how your estate will then pass.
If you have no issue (i.e. no children, grandchildren or later descendants) and you were still legally married at the date of your death, then your spouse will receive the entirety of your estate. It is worth noting that in cases of divorce, in the period before the Decree Absolute is issued dissolving the marriage, you are still legally married to the partner you are divorcing. As such, if you had no children, then your partner would still receive the entirety of your estate as your legal spouse at the date of your death.
If you did have children, then the first £270,000 of your estate and all of your personal belongings would pass to your spouse and the remaining estate would be split 50/50 between your spouse and your children. This could result in the partner you are intending to divorce receiving a substantial portion of your estate if you died.
If your spouse subsequently dies, then any assets that they inherited from you would pass in accordance with their own estate. If they have a new relationship this could mean that your assets would potentially pass to that new partner rather than to any beneficiary that you intended to benefit.
If you did not previously have a valid Will in place then it would be prudent to prepare a Will, to ensure that your estate passes to your intended beneficiaries rather than to the spouse that you are divorcing.
If you did have a valid Will in which your spouse was named as a beneficiary, you may wish to update the Will to remove them accordingly. If the Will is not updated and the divorce was not finalised at the time of your death, they would still stand to benefit from the gifts left to them in your Will. If the divorce was finalised, then they would be treated for the purpose of the Will as if they had died before you.
Inheritance (Provision for Family and Dependants) Act 1975
You should also be aware that once the divorce is finalised your ex-spouse may still potentially bring a claim against your estate under section (1) (b) of the Inheritance (Provision for Family and Dependants) Act 1975 (IPFDA75) if they believe that they did not receive reasonable financial provision from your estate.
If it is appropriate to do so in the circumstances, you may also wish to discuss with your Family solicitor whether to make an application under section 15 (1) of IPFDA75 to restrict any application for financial provision under the Act by your ex-spouse. However, you should be aware that there is no guarantee that the Court would impose this restriction if they believe it would not be just in the circumstances of your case.
Next Steps
If you are going through a divorce and you have any questions regarding your estate planning, or if you require assistance with any other matter, please do not hesitate to contact our Trusts & Estates Department on 01244 354800 or email: Heather.Lally@dtmlegal.com or Stephen.Mackellar@dtmlegal.com.
