Marriage & Divorce & your Will.
Every week, I am told with absolute certainty that divorce revokes a Will, and marriage doesn't. It must be true because "Dave down the Pub" told them, which was confirmed by their sister-in-law, who was nearly an accountant ten years ago.
Many people don’t realise the effects getting married or divorced can have on your estate, whether you die with a Will or intestate (without a Will).
MARRIAGE or CIVIL PARTNERSHIP (CP)
Marriage or CP revokes your will. This means the deceased’s assets will pass following the laws of intestacy.
CONTEMPLATION of MARRIAGE or CP.
If a properly documented clause had been included in the Will in contemplation of marriage, the Will would be valid.
It should have been documented that the Testator (person making the Will) is expected to be married or (CP). The intended needs to be named, and the marriage should be considered within a reasonable timeframe (e.g. 2 years)
The Will must clearly state that it should not be revoked by marriage or the formation of a CP.
What if the current Will contains an in-contemplation marriage clause, and the couple go on to have a civil partnership?
If the current Wills include an in-contemplation of marriage clause and the couple enters a civil partnership, their current Wills will be revoked. Proper drafting can easily avoid this by adding an either-or clause.
D.I.V.O.R.C.E.
When a couple divorces, they may decide to update their Wills only once the decree absolute has been received (the document that means they are legally divorced).
Until the decree absolute is issued, you are still classed as legally married to one another, which means the spouse can still benefit in accordance with your Will if it is not amended, and most people would want to avoid this.
Where a couple has commenced divorce proceedings or even before this, we advise them to rewrite their Wills immediately. Unfortunately, no one can know how long their life span is and, therefore, if the spouse was to die before the decree absolute was issued.
In cases of divorce or separation, if you do not want your ex-spouse to benefit from your estate, we recommend including an exclusion clause in your Will explicitly excluding your husband or wife. This should be clearly stated to avoid any misunderstanding. It would be best to consider including a letter of wishes explaining the reasons for the exclusion in case your ex-spouse contests your will. It's important to note that there is a possibility that your ex-spouse could make a claim against your estate if they believe they have not received reasonable financial provision, which is addressed in a separate article.
After your divorce is finalised and a decree absolute is issued, your Will treats your ex-spouse as if they had passed away before you. This means that if your current Will names your ex-spouse to receive your wedding ring or your estate upon your death, that gift will essentially be invalidated. The same would apply to any appointments of the ex-spouse as trustee, executor or guardian.
What if I want my ex-spouse to benefit from my Will?
There are situations where the marriage may have ended amicably, but the parties still wish to provide for each other in the event of death or for the ex-spouse to continue serving as the executor and trustee. If the intention is for the ex-spouse to benefit from the Will once the divorce is finalised, a suitable clause would need to be included in the Will or more likely, a new will drafted.
SEVERANCE OF TENANCY
It is also wise to sever the tenancy on any jointly owned property held to prevent it from passing automatically to the separated spouse. This will enable each spouse to gift their share of the home as they wish rather than passing by survivorship. Mutual severance is preferred, though forced severance is an option.
For advice on Wills or to settle an argument with "Dave down the pub," contact chris@fernwills.com.
