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Family Law

What happens to my Will when I divorce?

Wills

What happens to?
The most commonly asked questions from couples separating or divorcing

Wednesday, October 6, 2021

What happens to my Will when I separate and divorce?

Whether you are in the early stages of a separation or your divorce has been finalised it is important that your Will is up to date, to ensure that your estate is divided up in the way that you want.

What happens to my Will when I separate?

If you separate from your spouse, this does not have any effect on your Will. It still remains valid. Your spouse will inherit according to the provisions set out in your Will. Therefore if your spouse is named as the sole beneficiary in your Will, whether you have been separated for several weeks or many years, your spouse will inherit your entire estate.

Until your divorce has been finalised, to ensure that your assets do not automatically go to your spouse, we recommend that you make an “interim” Will. The interim Will can exclude your spouse and s/he can be replaced with other beneficiaries, perhaps your children or your new partner.

What happens to my Will when I divorce?

A divorce does not have the effect of cancelling your Will. The Will remains valid even after your divorce is finalised and you have your Decree Absolute.

Once the Decree Absolute has been made, your former spouse will, however, be treated as though they have died for the purposes of your Will, effectively they are “written out” of your Will. Simply put, any instructions to leave assets to your former spouse will be ignored.

The assets which would have passed to your spouse will be redistributed to your other beneficiaries. If you have not named any other beneficiaries, this will be problematic. Hence we recommend that once your divorce has been finalised you make a new Will to ensure that your estate is divided up the way you want.

What happens if my spouse is the Executor of my Will?

Until your divorce is finalised, your spouse will remain the Executor of your Will. This will be the case, even if you have been separated for many years. To avoid such a situation, we recommend making an Interim Will, appointing a new Executor.

This is not the case after your divorce is finalised, your former spouse will not be appointed as your Executor. This may you leave you without an Executor so again it is important to make a new Will and appoint a new Executor.

If you are separated or divorced we recommend updating your Will is an absolute as a priority. Making a new Will after separation and divorce allows you to;

  • Ensure your estate is divided up the way you want
  • Make sure all your children are provided
  • Also, ensure any new partner or dependants are provided for

Contact

If you would like further advice on this topic or any other family matters then please do not hesitate to contact our specialist and friendly Family Law team on 0191 2328451 or if you prefer, via email familydepartment@samuelphillips.co.uk

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