LGFL Wills, marriage and divorce; don’t get caught out
October is Free Wills Month, a campaign that enables the over 55s to get a simple will written or an existing will updated for free, with the opportunity to include a charity bequest in that will. Many national charities offer simple wills for free to anyone aged over 18, all year around, again in the hope of a bequest.
Your will: a living document
Many people make a will and then forget about it. However, a will is a "living document", and needs to be updated and revised as your circumstances change. This is especially important at two major life events - marriage and divorce.
Getting married? Write a new will
When you enter into a contract of marriage or a civil partnership in England and Wales, any existing will you have in place automatically becomes null and void, unless you have included a specific reference to your forthcoming marriage.
In this case, you have to provide details of the person you are to marry, and specify that your will is made "in contemplation of marriage.” This option can be useful for if you are engaged and don’t wish to wait until after your wedding to create a new will.
If you do not make a new will after you marry, you are deemed to have died intestate, and the law decides who inherits what from your estate.
Divorce and your will
Unlike getting marriage, getting divorced does not automatically make your current will invalid. However, it does lock out your spouse from benefitting from your will.
Once you are divorced, your ex-spouse cannot:
- automatically benefit from your will
- act as an Executor
- act as a Trustee
Once you have received your Decree Absolute, the law treats your ex-spouse as if they have pre-deceased you. So anything your ex-spouse was to inherit passes on to the next entitled beneficiary.
- If your will leave everything to your ex-spouse, with no other named beneficiaries, the law treats this as you dying intestate with no will at all.
- If you do wish to leave anything to your ex-spouse, you will need to specifically make that bequest in your new will.
Looking after your children in your will
Your will should detail exactly how your children should benefit, and precisely what you leave to them. This is particularly important for any step-children or foster children, as they are not covered by the Rules of Intestacy if you have not made a will.
I’m getting divorced. When should I update my will?
The short answer is, as soon as possible. Since your ex-spouse will only cease to benefit from your will on the date your Decree Absolute is issued, if you die before that happens, your almost-ex-spouse will inherit as per the provisions of your current will.
Separating but not divorcing
The same applies if you separate but don’t get divorced or dissolve your civil partnership. Your original will remains valid until you update it to reflect your new circumstances. So, if you die without updating your will, you ex-spouse will inherit everything your current will specifies. Again, if you have no will in place, your separated spouse will receive the first £240K of your estate, with the rest split 50/50 between your spouse and your children.
Cohabitation and your will
If you choose to live with your partner but not marry or enter into a civil partnership, you must make a will to protect them and your family. If you die intestate (without a will) your partner has no automatic rights to any part of your estate and they could wind up with nothing. Your will needs to specify what you leave to your partner, your children, and other beneficiaries. Remember, this will remains valid if you subsequently separate, and will need to be changed to reflect your new circumstances.
Wills and remarriage
If you remarry, any current will become invalid. You should make a new will to reflect your new situation, and in particular, to include provision for any children from your first marriage. You may also wish to ‘ring fence’ your gifts to your children so that your ex-spouse cannot access them - ask your financial advisor or estate planning expert for advice.
Will a simple will be sufficient?
A simple will such as those offered by the Free Wills scheme is just that, a simple document laying out your main wishes. However, for those with substantial assets, their own business, or an extended blended family, a simple will is not usually sufficient. In this case, you should consult a will writer or solicitor, and discuss your requirements in detail.
A well drafted, comprehensive will drawn up by a solicitor or will writing expert provides you with the reassurance that everything will be in order and your wishes made crystal-clear. You can also update or add to this will at any time.
Wills and LGFL
As family lawyers, we partner with expert will writers and solicitors who we know provide an excellent service. Call us for our recommendations, or make an appointment to discuss any family law services including divorce and separation, civil partnership dissolution, and cohabitation agreements.