Divorce and Wills: the Aftermath of D-Day

Written by John FitzGerald

Drawing up a will may be the last thing on your mind in the middle of a split, but not doing it can lead to more strife

The New Year is traditionally the time of year to take stock, but unfortunately this can entail more than just a new diet. The New Year often sees a rise in the number of divorce enquiries — the first Monday of January has even become known as “Divorce Day” (D-Day).

Decisions such as those to start divorce proceedings are never easy and it is important for couples to make sure that their financial affairs are in order and, in particular, that their wills are up-to-date.

Failure to do so, in the unlikely event that one of the parties should die during the divorce, could make the fallout even more traumatic.

It is common for spouses to have mirror wills, leaving the lion’s share of their assets to each other. The sentiment behind this decision is unlikely to remain during a bitter divorce, but the fact that a couple are divorcing does not, in itself, affect the validity of a will.

The Wills Act 1837 is designed to ensure that a former spouse does not benefit from a will executed during a marriage that has subsequently ended in divorce.

Where an individual refers to a spouse in their will and has subsequently divorced that spouse, their will is read as if this former spouse has already died and any bequests to that ex-spouse will fail. For this to happen, however, a decree absolute must have been granted. At any stage before this point, even after the decree nisi, a soon-to-be former spouse can still inherit under the terms of the will.

If an individual dies without making a will, their estate will be distributed according to the intestacy rules.

If the deceased had children then a spouse will inherit a statutory legacy of £250,000 and a life interest in half the remaining estate, with the children receiving the other half.

Where the deceased had no children, a spouse will inherit a statutory legacy of £450,000 and half the remaining estate absolutely. The other half is inherited by the deceased’s remoter relatives. As with a will, a spouse can inherit until the point of the decree absolute.

Under the proposed Inheritance and Trustees’ Powers Bill, where there are children a spouse will receive the remaining half of the estate absolutely, rather than on trust, and the entire estate absolutely where there are no children.

Many couples, however, own property together as joint tenants rather than as tenants in common. Tenants in common are able to leave their share in the property to whomever they choose. Property owned as joint tenants, however, passes under the law of survivorship to the surviving joint tenant, regardless of the terms of any will.

Parties are best advised to make a new (or first) will at the outset of a divorce and, where it is deemed appropriate, to sever any joint tenancy. They should do so, however, following comprehensive advice, as a surviving spouse, even where divorce proceedings have begun, may consider that they have not been left with reasonable financial provision and may bring a claim for provision under the Inheritance (Provision for Family and Dependants) Act 1975.

Drawing up a will may be the last thing an individual wishes to consider while in the middle of a messy divorce, but failure to do so can lead to further turbulence and strife should one of the parties involved die before the granting of the decree absolute – especially potentially for family members who survive them.

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John FitzGerald

Gordon Dadds