Reviewing your Will should always be considered after a significant life change such as a divorce.
As solicitors specialising in Wills and trust law, our article will provide you with valuable information about how your Will may need to be updated if it still includes an ex-spouse and why you should ensure it is updated not only after a divorce but during the divorce process itself.
Does Divorce Make a Will Invalid?
In short, the Will created before the divorce remains broadly in tact apart from where any references are made to your ex-spouse.
The ex-spouse will no longer benefit under any provisions you have made in your Will. Instead, they are legally treated as if they have passed away at the time of the divorce once the Decree Absolute has been officially issued.
Why Should You Re-write Your Will After a Divorce?
If your ex-spouse is considered as deceased in the eyes of the law and you have not updated your Will, it could affect how your estate is dealt with on your death.
What Happens If My Ex-Spouse is Named as an Executor?
Your ex-spouse is no longer able to act as your executor and trustee. If they are the only executor named in the Will, someone else will be appointed by the probate court.
The Non-Contentious Probate Rules
The Non-Contentious Probate Rules will govern who is entitled to administer your estate where there is no validly appointed executor in your Will.
What Happens If My Ex-Spouse is Named as a Beneficiary?
Where you have made gifts to your ex-spouse as a named beneficiary, that gift will fail and instead will be given to the next entitled beneficiary named in your Will.
If the Estate Becomes 'Intestate'
If, however, your Will only names your ex-spouse as sole beneficiary and no other provisions are made, the estate will be ‘intestate’ meaning that the Rules of Intestacy will determine how your estate is divided on your death. This may not necessarily be the way in which you wish your estate to pass and may also not be tax efficient.
Therefore, it is essential to revise your Will to ensure that your estate is given to the chosen beneficiaries, such as a new partner and your children.
What are the Rules of Intestacy and Why Could It Affect Your Will After a Divorce?
The Rules of Intestacy come into effect when:
• A valid Will is not implemented or is invalid; or
• When a beneficiary named in the Will passes away or is deemed to have died before you, and the Will does not provide further instructions on how to distribute the estate.
The Disadvantages of the The Rules of Intestacy
The Rules of Intestacy follow a strict order of who is legally allowed to inherit an estate in the event of a death without a valid Will.
This could mean certain loved ones are not entitled to benefit from your estate. For example, unmarried partners and step-children will not be legally entitled to anything left by the deceased under the Rules of Intestacy.
Please read our article for more information on how the Rules of Intestacy affect an estate after death.
What Happens to My Will If I Re-Marry?
Upon remarriage, the original Will, which may have included your ex-spouse, will be revoked in its entirety at the date of the new marriage.
A Will which is made ‘in contemplation of marriage’ will ensure that the Will is not revoked on marriage. NSS Legal can assist with ensuring your Will is drafted properly to reflect your circumstances.
How Can I Change My Will After a Divorce?
It is equally as important to review your Will and the assets you own early on in the divorce process and not just at the end.
Even if you are leading separate lives, until the Decree Absolute is issued by the Court, you will still be legally married. This means that your ex-spouse can still inherit, whether it is by virtue of the fact they are named in your Will as a beneficiary or under the Rules of Intestacy where they will rank highly as a beneficiary of the bulk, if not all, of your estate.
Reviewing Jointly Owned Assets
As well as advising you on the terms of your Will and assisting with drafting a new Will, NSS Legal can also assist in reviewing how you own the joint assets with your ex-spouse.
If you jointly own assets, you can hold these as either joint tenants or tenants in common. More often than not, the assets between spouses are owned as joint tenants, which means on death it will automatically pass to the survivor. It will not pass under the terms of your Will or under the Rules of Intestacy.
If you do not wish for your ex-spouse to inherit jointly owned assets
There have been unfortunate cases where one spouse has died during the divorce process before updating their Will or before the Decree Absolute was issued.This has resulted in their estranged spouse receiving a huge part of the estate.
If you do not wish for your ex-spouse to inherit any jointly owned assets, NSS Legal can advise you on how to sever any joint tenancies – particularly over what is usually the largest asset, the matrimonial home.
You are then free to leave your share under the terms of your Will, subject to any court orders made during the divorce proceedings.
It will also be important to bear in mind any court direction during the divorce process over any asset you own during your lifetime and thereafter.
How Can NSS Legal Help?
NSS Legal take a sensitive approach to changes in your circumstances and are on hand to guide you through the important things to consider during that time.
If you need legal guidance on updating your Will during or after a divorce or severing joint tenancy assets, please get in contact with our team on 020 8209 1222 and we can assist you through this. Alternatively, you can email us at firstname.lastname@example.org. We can also assist with potentially changing a Will as a beneficiary, also referred to as variation of Will.