We Are Divorcing – Will My Soon-to-be-Ex Spouse Receive Anything From My Will?
Many of our divorcing clients are concerned about how divorce will affect their future estate planning and whether their ex-spouse will receive anything from their previously drawn up Wills.
Our Amye Aris, Wills and Probate Solicitor at New Leaf Solicitors, sets out the position for divorcing or divorced couples.
Does getting divorced automatically revoke my previous Will?
The act of divorce and obtaining a Decree Absolute operates to treat your ex-spouse as if they had predeceased you on the date the Decree Absolute is granted. Divorce does not, however, automatically revoke your Will. This means that your ex cannot automatically inherit under any pre-divorce Will, but it could mean, depending on the terms of that Will, that your estate or gifts within it will fail and fall under the rules of intestacy. The consequence of this would mean that your estate may not be distributed in the way you had set out for it to be divided in a Will made before the marriage broke down.
It is really important to re-visit your Will if you are in the process of divorcing. You should ensure that you have appointed up-to-date Executors and Trustees to administer your Estate (especially if you had named an ex-spouse in that role), that you have agreed on legal Guardians for any minor children, and that your estate is divided in accordance with your wishes to your intended beneficiaries.
Can my ex-spouse still make a claim for financial provision under my Will?
In certain circumstances, under law known as the ‘Inheritance (Provision for Family and Dependants) Act 1975, an ex-spouse may bring a claim for financial provision against your estate. To bring a successful claim your ex must be able to prove to a Court that they had been unfairly left out of inheriting under your Will. To qualify they must not have re-married and must also show that you failed to reach a financial settlement order in the divorce, or a clean break as part of your divorce.
It is important to take legal advice when reaching the final stages of divorce and agree formally how the family finances will be split.
What about arrangements for our children should we both die before they reach 18?
Anyone with parental responsibility may appoint legal guardians in their Will to ensure that someone shall look after any children under the age of 18 if they died before then. Often parents who are divorcing will try and agree a plan for the children, this will include what happens in the event of their deaths, who would have the children, where would they live etc. We can help you to put legal guardians in place in your Will to provide you with overall peace of mind.
If you are thinking of divorcing or have already started the process and what to update your Will speak to our team today on 01908 542 677 or email [email protected] and we can assist.
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