The Ex-Factor: why it’s vital to make or change your will after separation 

The early part of any year goes hand-in-hand with an increase in divorce applications. And 2019 is already proving no exception.

This is normally because families and spouses have had a period of two and three weeks or more together in close proximity over Christmas and New Year, when compared to the remaining 11 months of the year.

This can cause friction and unrest for a lot of couples and leads to divorce applications increasing on the basis that one party can no longer live with the other as they find their behaviour unreasonable.

Festive-related divorces are not something that only happens on television. Over 30 million viewers tuned in to Eastenders on Christmas Day in 1986, to witness Dirty Den handing Angie her divorce papers, giving the soap its highest ever episode rating, which has yet to be beaten by any other plot line from any other soap in the UK.

They happen in real life too. In fact, we know from official figures that no fewer than 13 people filed for divorce on Christmas Day in England and Wales last year.

Valentine’s Day – widely regarded as the most romantic date of the year – is not immune either from life-changing divorce and separation decisions.

For every personwho uses the occasion to send flowers, cards and gifts to woo their loved one, there’s often another considering ending their relationship.

So, from our experience, the days surrounding February 14 are also among the busiest of the year for divorce and separation inquiries. .

Whether you are the instigator or not, it is of course a stressful and worrying time to go through as there is a lot to consider.

This includes what will happen to any children of the marriage, where will the parties live, what will happen to your assets and liabilities, how long will it take to divorce, what if you have met someone else.  The list goes on.

One matter that a lot of our family law clients do not give consideration to in the early stages of their separation and divorce process is the importance of reviewing and amending their current will, or making a will if they do not have one in place.

Here, we look at some of the most common scenarios facing couples going through a divorce or separation, and answer typical questions arising from them:

What would happen if you separate from your spouse and you did not have a will?

Until you obtain the decree absolute (the document required to bring your marriage to an end) from the Courts,  you and your spouse are still married, even if you have been separated for a number of years and have split your finances.

Therefore, if you have no will in place, then under the rules of intestacy your estate would pass to your spouse –  even if this is not something you wish to happen.

This would mean that your spouse could receive the following:

  • If you are married without children, all of your estate will pass to your spouse.
  • If you are married with children, the first £250,000 of your estate will pass to your spouse. The rest of your estate will be divided into two equal parts. One half will for your spouse, and the other half will be held for your children in equal shares, until they are 18.

What would happen if you separate and you have a will in place?

Again, until you obtain the decree absolute from the Courts, you are still married to your partner.

Your will at the time of your separation would more than likely reference that your spouse will benefit under the terms of your will upon your death.  Furthermore, they could also be named as an executor of your will.

Of course, following a separation, your wishes as to what will happen to your estate upon your death, and who you wish to handle the same, will more than likely no longer be your spouse.

What steps should you take when you separate in relation to your will?

We always advise that our family law clients need to review their current will at an early stage following a separation to avoid an unfortunate situation as discussed above.

Consideration needs to be given to removing reference to your spouse entirely from your will as soon as possible, and deciding what your new requirements and wishes would be following your separation.

What would happen following your divorce and your will? 

When you obtain your decree absolute from the Courts, this not only brings your marriage to an end but it has the effect of removing your spouse from your will entirely (either as a beneficiary or executor or both) – so long as there is no provision stipulating otherwise.

If your spouse was the sole or main beneficiary within your will, then following your divorce your estate would pass under the rules of intestacy instead.

Consideration therefore also needs to be given at this time to the provisions of your will and your wishes.

Following a divorce, your financial situation may have changed and therefore the provisions within the will may need to be altered to reflect your current situation.

Therefore we advise that following a divorce you seek advice on whether the terms need to be changed again.

Here at Milner’s solicitors, across our Leeds, Harrogate and Pontefract offices we have a dedicated family law team who can assist and advise further in relation to your separation and the divorce process; as well as with a wills and probate team, who can implement changing a current will or preparing a new will in a short time frame to give you peace of mind.

To contact a member of our family law team please contact Danielle Symington on 0113 245 0852 or at danielle.symington@milnerslaw.com.  To contact a member of our wills and probate team please contact Jessica Savage on 0113 2450852 or at jessica.savage@milnerslaw.com who will be able to answer any questions about obtaining or changing a will.

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