In case you die after marrying or divorcing make sure your will is up to date, as otherwise your estate may end up in the wrong hands…. Beware, as the rules regarding the effect on wills of marriage and divorce are not straightforward and if you get it wrong it can have far-reaching and unintended consequences.
The first point to note is, that if you marry or enter into a civil partnership any existing will automatically becomes of no effect.
Therefore, unless you make a new will, your estate will be distributed in accordance with the rules of intestacy. In general terms, these rules provide that your husband, wife or civil partner will receive the first £322,000 of your estate, plus your personal possessions and half of the rest of your estate.
The other half, above £322,000, will pass to your children (not stepchildren), and if you have no children, your husband, wife or civil partner will receive everything.
That may not be as you intended, for example your children may be young and you may want your other half to have everything or, in the case of a second marriage where there are children from your first marriage, you may want your children to have everything.
The second point is, what happens if you marry or enter into a civil partnership and make a new will, but you then divorce, or your civil partnership is dissolved. In this case, your will remains valid, but your ex is treated as if they had died at the point you became divorced, or your civil partnership was dissolved.
Accordingly, if your Will doesn’t say what is to happen to the share of your estate that you left to your ex, the rules on intestacy will apply and the part of your estate that you left to your ex, could end up being distributed to people that you had not intended to benefit.
Therefore, as soon as you decide to divorce or to dissolve your civil partnership make a new will.
Don’t wait until the divorce or dissolution goes through many months later. In the worst of all scenarios, if you were to die before the divorce or dissolution goes through the position is that, as you are still married your will remains valid, and consequently your estate may end up passing to the very last person that you intended!
Stepchildren can also complicate the process as they are not automatically entitled to inherit from a step-parent’s estate under UK intestacy rules unless they have been legally adopted by the step-parent. This means that if a step-parent dies without a will, their estate will be distributed according to intestacy laws, which do not recognise stepchildren as beneficiaries.
Furthermore, one needs to consider guardianship for minor children. Appointing a legal guardian through a will is vital to ensure that minor children are cared for by someone chosen by the parents rather than leaving this decision to the courts.
A final word here. If you are financially maintaining your ex after you are divorced or your civil partnership has been dissolved (in other words you are paying them maintenance), and you don’t include them in your will, they could potentially make a claim under the Inheritance Act.
A clean break (where no maintenance is paid), might protect against such a claim but not necessarily – for example where children still need to be maintained.
So, the message is that you should keep you will updated particularly if your circumstances change. If you intend to marry or have a civil partnership, any Will made before the event must state that it is made ‘in contemplation of that marriage or civil partnership’.
As always to avoidfar-reaching and unintended consequences, take professional advice.
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If the above resonates or you know someone who may benefit from speaking to us, please do contact me. We don’t charge for an initial consultation.