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A legacy for the family: wills and divorce

This month (October 2023) is Free Wills Month, a national initiative bringing together a group of charities to offer those aged 55+ a free will or will update.

These “simple wills” are written for free by participating local solicitors, and put in basic provisions for family and friends. These wills also (hopefully) include a gift for your chosen charities, but it’s by no means obligatory.

Zero cost or low cost will writing services are not just limited to the month of October either. Many charities offer a free will writing service for simple wills, in the hope of a gift to them when you die.

A free simple will may seem a very tempting offer with good causes at its heart. While a simple will is certainly better than no will at all (more on this later), it is limited in its scope and won’t cover detailed arrangements that best reflect your family circumstances, such as extended families and/or children by previous marriages.

You should always seek legal and financial advice on creating a will that covers all your bequests in detail. You can leave gifts / legacies for as many charities as you wish in any will you write; the charity doesn’t have to write it for you.

 

Where there’s a will

As family lawyers, we are often taken back by the number of people who haven’t made a will at all. It’s one of the most important documents you create, and considering how long-lasting it is, it’s a remarkably cheap one to make too.

  • If you have made your will, great. You can move on to the next section!
  • If not, make it your priority to make a will.

If you die without making a will, (known as dying intestate), nobody will know how you want your estate to be divided up. The rules (laws) of intestacy state that only spouses, civil partners and some close relatives can inherit.

There’s a further sting in the tail, as the Citizen’s Advice Bureau website explains:

“Married partners or civil partners inherit under the rules of intestacy only if they are actually married or in a civil partnership at the time of death.”

So what happens when you get divorced?

 

Wills before and after divorce

The process of divorce includes untangling both the emotional and financial ties between you and your partner. While a financial settlement deals with the division of assets at the time of divorce, it’s also important to realise the longer-term impact on your estate - and your will.

If your will predates your divorce proceedings, you should change it asap to reflect your new circumstances. This is because if you are in the process of getting divorced, but you are still married at the time of your death, then your spouse can inherit. You are only officially divorced when the final order (formerly known as the decree absolute) has been granted.

So, it is important to change your will as soon as you are certain you are going to divorce.

Your existing will won’t automatically become null and void when you get divorced. Only the parts pertaining to gifts (bequests) to your spouse change. As the Law Gazette explains:

“In law, an ex-spouse is, on divorce, treated as having died before the deceased, so any gifts to that ex-spouse as a beneficiary fail and so does any appointment of them as executor.”

The rest of any existing will should remain unchanged, so your children and relatives will still benefit from your will if you included them. However, so might your in-laws!

 

LGFL and will writing

As boutique divorce and family lawyers, we don’t offer a will writing service ourselves. We just know how important they are, and how the lack of a will can really complicate matters for families at a very difficult time in their lives. Contact us for our recommendations for local will writers.

 

Who inherits the house?

Your family home is usually one of the largest assets you have as a couple. You can own your property in two different ways, and how you own it can determine who can inherit.

  • If you own a property as Joint Tenants, when you die the ownership of the property passes to the surviving owner/s. This “bypasses” any request/bequest of the property in your will.
  • If you own your property as Tenants in Common, you personally own a defined share of the property. That share can be included in your will and passed on to beneficiaries.

For more on tenancies, and how to sever them, see our article:

Why you should discuss Joint Tenants and Tenants In Common with your family lawyer

 

Wills and remarriage

In terms of your will, remarriage is quite different to divorce. When you remarry, your existing will automatically becomes null and void. If you do not make a new will, the laws of intestacy will apply and children from your previous marriage may not receive anything.

 

Holistic divorce advice from LGFL

Divorce may seem simple on the surface, but we know from decades of experience that many people underestimate the time, effort and emotional impact involved.

That’s why at LGFL, we offer a reduced fee initial consultation lasting a full hour. We can talk through your circumstances in more detail and guide you through the process, so you understand the implications for you, your family and your estate.

Contact us to book your reduced fee initial consultation:

- Call us

- Email us

- Request a consultation online