Making a Will, while having to deal with everything else that comes with going through a divorce, is never at the top of your priority list but it should be. Imagine working your way through the upsetting and often expensive divorce process only to die before your divorce has been finalised.  

If you die while your divorce proceedings are ongoing and you have not made a Will the intestacy rules set out who is entitled to inherit your estate and the amount they will receive.  Even if at the time of your death you have separated from your spouse or civil partner and have commenced divorce proceedings against them, their right to inherit under the intestacy rules still applies.  Until you have received the decree absolute confirming your divorce is complete, you are still legally married.

The intestacy rules state that if you are married without children your estranged spouse will receive everything.  If you are married with children your spouse will receive all of your personal belongings, the first £270,000 of your estate plus half of the remaining value.  Your children will receive the other half when they reach 18 years of age.

If you already have a Will but fail to update it while the divorce is ongoing, the terms of the Will remain effective until you have received your decree absolute.  This means that any gifts to your estranged spouse will still be effective regardless of whether or not you wish for them to receive any of your estate.  If you made Wills throughout your marriage or civil partnership leaving everything to each other then your estranged spouse stands to inherit your entire estate.

On receipt of your decree absolute your Will is not invalidated.  Instead, your ex-spouse is treated as if they have died before you.  Any appointment as executor, guardian or and gifts to them will fail. 

Any new Will that we have helped you make throughout your divorce proceedings will have prepared for the effects of the decree absolute.  Any Will made by you throughout your marriage is likely to need to be updated.

Your obligations to a spouse, even an estranged spouse, do not stop on death.  If throughout your divorce proceedings you create a new Will leaving your estranged spouse nothing, the result will likely be expensive litigation after you have died.  This unnecessarily decreases the estate through legal and other costs and means that it can take months or years before your intended beneficiaries receive anything.

At the same time, it is important to limit as far as possible the assets that your estranged spouse will receive.  Essentially, your Will must find a balance between your obligations towards your estranged spouse and those you wish to benefit from your estate. 

Regardless of whether or not your divorce is acrimonious, preparing or updating your Will is the best way to protect your assets and to ensure they pass to your chosen beneficiaries. 

As soon as you separate or make the decision to start divorce proceedings you should make or update your will to reflect your wishes.  Get in touch and one of our experienced team will talk you through the various will and trust structures available and assist you in finding that balance. 

Originally published by DMH Stallard, August 2020

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.