What happens to a will after a divorce?
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Often, the legal complexities of the divorce itself can mean you overlook other important considerations like your will. But it’s vital that you think about this too.
When you separate or get divorced many things are agreed about how you will divide your assets and the arrangements that will be in place when you’re no longer together. But, without proper planning, it could be that the death of either partner could create some significant issues if they are a beneficiary named in your will.
The changes to your will’s legality
This is because, unlike wills which are rendered void when you marry, they remain fully in force when you divorce. However, from the moment that the decree becomes absolute marking the very end of the marriage or partnership, the law treats the situation as if your ex-partner has died.
In these circumstances, any gifts that you had promised to your ex-partner would go back into your estate for distribution between the other beneficiaries named in your will. This isn’t necessarily a bad thing, but it does mean that you won’t have specifically expressed a wish that those people should receive the gift or gifts in question.
A question of intestacy
A far bigger issue arises if you’ve left all of your estates to your ex-partner. Because the law relating to wills regards them as being dead after a divorce, it will be as if you’ve died intestate – this means without leaving any will at all.
In this case, the law of intestacy will come into force. If you have a new spouse or civil partner they will automatically inherit everything. If you don’t then it will all pass to a child or children, your parents or other members of your family. On the other hand, if you have no close living relatives everything will go to the state. Most of us want to have at least some say in how our estate will be distributed and dying intestate effectively means that this will not be possible.
Of course, it’s not just the gifts in your will that you need to think about. If you have named your ex-partner as an executor – a person who will have a responsibility to see that your wishes are carried out – then a replacement person may need to be appointed. Similarly, if your ex-partner is named as the person who will be in charge of trusts that you have set up to provide for children or grandchildren this will also be void, as will any responsibilities that they have been given as a guardian.
So, as you can see, when you divorce it throws up many issues in terms of your will and exactly how your estate will be dispersed when you die.
Act in good time
Therefore, it makes sense to change your will before the decree becomes absolute - there’s no reason why you can’t do this as soon as you are separated and are sure that you will go through with the divorce. It would also be a good idea to try to encourage your partner to do the same so all the legal formalities can be neatly tied up in good time. It’s also possible that if either of you has a new partner that this would be the right moment to include them or any step-children in your new will.
At Eatons, we have a great deal of experience of helping clients to write their wills. Our expertise means that you can rest assured that yours will be written correctly and leave no room for confusion.
To find out more, please get in touch today.
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