Divorce is a very stressful time and there are many things that you need to think about. One of the most crucial things that you need to address as soon as you decide to separate is estate planning and divorce.
You may already have a Last Will and Testament, but you need to change it. If you don’t have a Will you need to make one. It is very important that you understand the law relating to estate planning and divorce.
There could be very serious consequences if you do not take the appropriate steps to deal with estate planning and divorce. You need to take act now to protect yourself and your children.
Often people think that they can wait until after the divorce to deal with estate planning. This is a common misconception, and it can be a dangerous mistake.
What Effect Does Separation Have on my Will?
The simple answer is that separation has no effect on the status of your Will. If you die whilst you are separated from your spouse your existing Will is still valid.
You need to remember that a divorce usually takes many months to finalise. It can sometimes even take years to settle. There can be a very long time between filing a divorce and the Decree Absolute being granted, so you need to protect yourself and your children during this time.
If you have a Will which leaves everything to your spouse they could inherit everything, even though you no longer live together. Therefore, estate planning and divorce is an extremely important issue.
You can make a new Will now which will be valid after the Decree Absolute. Divorce does not invalidate a will. By planning in this way, you can make sure that your wishes of what happens to your estate are updated.
What is the Effect of a Decree Absolute on an Existing Will?
A divorce decree does not invalidate a Last Will and Testament. This a very important point. There are a lot of misconceptions out there about estate planning and divorce. This is a particularly dangerous myth.
What happens when your Decree Absolute is granted? Any gift or appointment of your former spouse takes effect as it they had died on the day that your Decree became Absolute.
In plain language, this means that if you left your whole estate to your former spouse your back up plan will come into effect. If you appointed them as a guardian or an executor this appointment is now invalid. Also, if you left a gift to your ex-spouse this will go back into your estate and be distributed in accordance with the other provisions of the will.
Will the Laws of Intestacy Help?
Everyone should have a Will. If you do not set out exactly what happens to your estate when you die, then your estate will be subject to the laws of intestacy. Most people don’t understand the consequences of this. Some people falsely believe that their children will inherit all the money anyway. This is a dangerous misconception. Here is what would happen if you died intestate.
The first £250,000 would go to your spouse. It doesn’t matter that you are separated, nor does it matter that you are waiting for your divorce to be final. Prior to Decree Absolute your spouse will inherit at least the first £250,000.
If you have an estate worth more than £250,000, half of the remainder would go to your children. The other half of the remainder would go to your spouse.
Looking at the laws of intestacy your spouse gets either the whole or the bulk of the estate and your children could get nothing.
If you do not have any children your spouse will receive the first £450,000 of your estate. Consequently, your spouse may inherit everything. Unless you have a very amicable relationship with your soon to be ex-spouse, you probably don’t want this to happen!
Do you want to leave this up to the laws of intestacy? Wouldn’t it be best simply to make a new Will? At LegalWills.co.uk it takes about 20 minutes and costs £24.95.
It is Fine – I Don’t Have Much Money
Some people will not have an estate which is very large. However, you need to think about whether this applies to you. Do you have a house which is worth more than you think? Or perhaps you have a life insurance policy which will pay out in the event of your death. You could even win the lottery! Because of this uncertainty, it is never a good idea to simply think that you will not be affected the consequences of not taking care of estate planning and divorce.
You Need to Think About Guardians for the Children
It is essential that everyone who has young children makes a Will. This is not only so that you can make financial provision for them in the event of your death. You can also appoint legal guardians for your children in your Last Will and Testament. It may be that your existing Will appoints your spouse (if they are not the biological parent of your child). After separation, you may no longer think that this is appropriate if your spouse is not their biological parent.
If you want your spouse to remain as a guardian it is also important that you make a new Will. Remember that the effect that a Decree Absolute has on an existing Will. An ex-spouse is deemed to have died on the day the Decree Absolute takes effect. This means that the appointment of them as a guardian would be invalid. If you want it to continue you should make a new Will appointing them.
Beware the Housing Trap
If you own a house jointly with your spouse you must think very carefully how to deal with this. Making the wrong decisions, or bad assumptions can result in your estranged or former spouse inheriting the house even if you make a new Last Will and Testament.
If you jointly own a house it is most likely that you own it as Joint Tenants. What this means is that you each own 100% of it. Therefore, if you die and you own a house as a joint tenant it will not become part of your estate. The other owner will inherit automatically and whatever you say in your Will about it is irrelevant. It will not be part of your estate and you cannot give it away in your Will. If you have children and this is the only asset of your estate this could mean that your spouse or former spouse inherits the house. The children may get nothing from your estate if there are no other assets.
Other ways to jointly own a home
Fortunately, there is an alternative way to own a house. You can own the house as Tenants in Common. This means that you can each own a set percentage of the house. We don’t mean your spouse owns the upstairs and you own the downstairs! It means that you can specify which percentage of the house you each own. You can own it in equal shares or any other percentage that you want to agree on. This is known as owning as Tenants in Common.
If you own a house as Tenants in Common your percentage of the house will form part of your estate. This means that you can leave your share to whoever you want to in your Will. If you don’t have a Will it would become subject to the rules on intestacy and your spouse may inherit your share. This is why it is important to make a new Will!
When you separate, you should ask your solicitor how to make any necessary amendment to how you own your house. They can give you advice about how you can easily sever the joint tenancy. This is an easy step, but you must do it in the correct way.
Estate planning and divorce – In Conclusion
It is essential that you think about estate planning and divorce. If you don’t your children and loved ones could be left with nothing from your estate. You can easily fix this, but you need to take steps as soon as possible. Making a will is easy and not expensive. Do this to protect your loved ones and have your estate distributed the way that you want it to be
He has over 19 years of experience helping people to write their Will and other estate planning documents. He has been interviewed by many of the major news media outlets and has contributed to articles in most leading publications. He has also contributed to a number of financial planning books.
Throughout his career, Tim has written extensively on the subject of Will writing and estate planning.
Latest posts by Tim Hewson (see all)
- How much does it cost to write a Will? – £0 to £1,000 explained. - March 14, 2019
- Will writing service – what to look for in a Will writing company. - October 12, 2018
- The Mirror Will explained – What is it? and how do you make one? - February 7, 2018