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Divorce law blog

What happens to my will after I divorce?

19/05/2017   By: Claire Molyneux

If you’ve just been through, or are going through, a marriage or relationship breakdown, making a new will is probably the last thing on your mind. But your existing will is unlikely to reflect your changed circumstances and it’s worth updating it sooner rather than later. The risk of not doing so is that, on your death, your assets don’t pass to the people you would like to inherit from you.

If you're separated but still married

As you are still legally married, nothing has changed where your will is concerned. This means your ex could still inherit under your will, no matter how long you have been apart. Consider making a new will that better reflects your current circumstances, particularly if you have started a new relationship. New partners do not automatically inherit on your death so you must name them expressly in a will.

Importantly, remember that if you have no will, your ex would inherit from you under the intestacy rules. How much they inherit depends on whether or not you have children:

  • if you are married but there are no children, all of your estate and personal chattels will pass to your ex;
  • if you are married and there are children, the first £250,000 of your estate (and all your personal chattels) will pass immediately to your ex. The rest of your estate will be divided into two equal parts. One half will go to your ex and the other half will be held for your children (in equal shares) until they are 18.
If you're divorced

If you made a will before your divorce, this will is still valid but a number of problems arise.

Many married couples appoint each other as the executors and beneficiaries of a will, either alone, or to share with the children. Divorce has the effect of removing your ex from your will completely, while the appointment of other executors and beneficiaries remain valid. This can be a problem if no substitute provisions are included.

Let’s say your will provides that your ex gets all or nearly all of your assets when you die. If there are no substitute provisions, then there is no one to inherit this property and your will is no longer valid. The intestacy rules will step in instead. And who ends up with your assets under the intestacy rules might not be the person or people who you really want to inherit from you.

After a relationship breakdown, it is completely understandable that you don’t want to think about complicated personal administration for a spell of time. But updating and reviewing your will is of crucial importance and will give you peace of mind that the people you want to inherit on your death will be the people who do inherit. The family lawyers at Mills & Reeve have lots of experience in dealing with the updating of wills after separation or divorce so do call if you would like further advice.

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