If you are separated from your spouse or going through a divorce you may not want them to receive anything from your estate in the event of your death and therefore it is important to think about your will. Even if you are separated, until Decree Absolute has been granted (which is the court order finalising your divorce), your spouse will benefit if they are named as a beneficiary in your will or if you don’t have a will, under the rules of intestacy. In these circumstances, it is best to seek advice about making a new will.
Once Decree Absolute has been granted, your whole will is not automatically revoked. When you are divorced your will takes effect as though your former spouse has died before you. The effect of this is that any provisions contained in your will benefitting your former spouse will automatically be revoked upon the making of decree absolute. For all purposes, your former spouse will be treated as though they have died and will not inherit under your estate.
Even if you are separated, until Decree Absolute has been granted (which is the court order finalising your divorce), your spouse will benefit if they are named as a beneficiary in your will or if you don’t have a will, under the rules of intestacy.
If your will specifies beneficiaries other than your former spouse, then your estate will pass to those beneficiaries in accordance with the terms contained in your will. If however, your former spouse is the only beneficiary named in your will, then your estate will be distributed in accordance with the rules of intestacy, which may not be in accordance with your wishes. Consequently, if your former spouse is the only beneficiary, or the main beneficiary under your will, it is advisable to prepare a new will once decree absolute has been granted. These rules apply not only where your former spouse is a beneficiary, but also to any provision appointing them as an executor or trustee, such provisions will also be automatically revoked upon decree absolute.
In circumstances where you still wish to provide for your former spouse, you are able to do so in your will but this intention would need to be expressly stated. You could for example, create a codicil to your original will which provides that, although you are no longer married, your former spouse should still receive the benefit of any provisions you have made for them in your will.
Another important point to note is that a former spouse may still make a claim from your estate under the Inheritance (Provision for Family and Dependants) Act 1975. To avoid this, it is important to consider seeking a financial Consent Order as part of your divorce proceedings which can provide for a clean break preventing your former spouse from being able to make such a claim.
Posted on March 6, 2018
