Divorcing couples should remember to amend will to avoid leaving estate to the ex

10 Sep 2021 | Jenny Walsh

In the midst of a divorce or separation, it’s rare for couples to think about making or changing their wills but failure to do so could mean your ex-partner inheriting everything in the event of your death.

Experts at London law firm Osbornes Law warn that until your divorce is finalised, your assets may pass to your spouse, whether it is the case that you have not previously made a will (so the rules of intestacy apply) or you have previously made a will leaving them the entirety, or a share of your estate. Ultimately this could see your assets ending up in the hands of his or her future partner or family, rather than those you wish to benefit.

Jenny Walsh, a partner specialising in wills and trusts, says, “Couples going through a divorce rarely think about making a new will, particularly if they are involved in a messy separation and are focused on pinning down the terms of their divorce settlement.

“The average divorce takes around a year, but if contested it can take a lot longer. Until your decree absolute is granted, you remain legally married and if anything happens to you before that, your ex will inherit, under the rules of intestacy or if they are mentioned in your current will. I have even worked on cases where separated couples have never finalised their divorce and years later their relatives find their anticipated inheritance has passed to a long-estranged ex instead.”

An ongoing divorce will not be taken into account when it comes to dividing the estate, with a couple still considered to be legally married. Once divorced, if your spouse is still written into your will, they will be treated as if they ‘predeceased’ you and those you wished to inherit in the event they died before you will be the beneficiaries instead.

Even if divorced however, you should still ensure your will is updated, Jenny warns, “There are a number of things you may want to consider, particularly if you have children and there is the possibility your ex-partner may remarry in the future.

“As well as thinking about who you wish to inherit your estate, you will need to decide on a new executor – perhaps a sibling or a friend – potentially stipulate a different guardian for any minor children and, if those children are set to inherit money, consider whether you are happy for your ex to have control of those assets until they are 18.  If not, you may want to appoint an alternative trustee and instruct that they retain the funds on behalf of the child instead of paying to their surviving parent.”

It is not unusual for divorce settlements to include a clause stating both partners must write a new will within, say, 30 days, leaving all assets to beneficiaries they have jointly decided on, usually their joint children.

Jenny says, “Compelling divorcing partners to make new wills through their settlement agreement is a sensible idea, giving some comfort to those concerned that their children be provided for and that this will not be jeopardised by any second marriage.

“It’s important to recognise however, that if they wish, either partner can revoke their will at any time and it is not possible to tie their hands. Mutual wills, where there is an attempt to make wills that do bind the other party, are fraught with difficulty and are not advisable given they can result in complex legal disputes and problems. They are rarely advisable for divorcing couples.

“For those divorcees who are happy to let their ex live in a property for their lifetime but don’t want it to pass to their ex’s beneficiaries in the event of their death, a better option is to give them a life interest, allowing them to live there but ensuring the house passes to the beneficiaries of your choice upon their death or them vacating the property.”

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