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Wills following divorce, separation and re-marriage

It is a very common scenario in this current age that relationships and marriages break down. Subsequently, people form new relationships and enter into new marriages and where children are involved, blended families are formed.

It will come as no surprise that money can be the spark that can cause tension, especially when children are involved and where a Will does not provide what was expected.

The best way to guard against a family fallout over inheritance is to make sure that you have an up-to-date and properly drafted will that has been carefully thought through. Where blended families are concerned, it can help to avoid problems later if the Will is as even handed as possible and taking proper legal advice is key to ensuring that all of the relevant factors have been considered.


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Passing on your estate

If you’re in a new relationship and you want to ensure your children from an earlier marriage still get their inheritance, it’s important to make sure your Will is up to date. Similarly, if your parent has re-married and you are concerned regarding how this will affect your inheritance it is important that you discuss this with your parent or parents as it may be that they haven’t given this thorough consideration taking into account all of the other matters they have had to contend with during their separation or divorce.

The specialists at Stephensons are experienced in the drafting of Wills in all manner of family circumstances. We are able to assist clients nationwide, there is no need to come into our offices, client meetings can be carried out over the telephone or via video conferencing, whichever contact method suits you best. This allows solicitors and clients to have virtual face to face meetings and provide a high level of personal service. For those people who wish, our solicitors are to provide draft documents using screen sharing facilities. Clients are able to comment on these drafts and they can be immediately amended. We can also use the more traditional approach of sending you draft documents to approve in the post. We will use whatever you feel most comfortable with.

If you would like further information on how we can help you, please call us on 0161 696 6238 for a no obligation initial chat with one of our advisors. We have a team of friendly and approachable advisors who are waiting to take your call. They will talk to you about your situation without using legal jargon and they will do their best to make you feel comfortable and at ease. If you don’t want to call us initially you can contact us at a time most convenient to you, anytime of the day or night, through our online enquiry form and we will get back to you as soon as we can to see if we can help.

Frequently asked questions

Why is important to change my Will when I start divorce proceedings?

Separation is generally an emotional time for everyone involved. Depending on your circumstances and priorities, making changes to your Will by way of a codicil or making an entirely new Will might be the last thing on your mind however, if you have made the decision to divorce and therefore separate indefinitely from your spouse then it makes sense to protect the ones you love and want to care for with an up to date Will. Until your divorce is finalised your existing Will is still valid. It is likely that your spouse is named as an executor and main beneficiary of this Will and you are unlikely to want this now that you have decided to divorce. The position would change upon the Decree Absolute being granted at which point your former spouse would be treated as being deceased however, in the meantime, consideration of a new Will to ensure that your assets are distributed as you would wish in the long term is vital. It is vital to take legal advice as to the effect of excluding a spouse in a new Will when you are separated but not yet legally divorced as your excluded spouse could still make a claim against your estate for reasonable financial provision if you die before the divorce is finalised.

If I previously made my co habiting partner a beneficiary of my Will why is it important to amend my Will?  

If you have separated from your partner then it is important to change your Will as you are not married.  If you had been married then on your divorce the law would have treated your former partner as deceased.  This would mean that on the date of the Decree Absolute your former partner would be both unable to act as your Executor if they were named as such and unable to inherit from your estate as a beneficiary. 

As you are not married then your Will will stand and if anything was to happen to you it would take effect and your former partner would inherit and could be your Executor. 

As you were previously co-habiting it is also important to look at the way in which you owned your property.  As you were unmarried you should have been advised to purchase as tenants in common which would have given each of you a distinct share of the property which you could Will as you wished. 

If however you bought as joint tenants you need to consider altering this and you can do what is known as a Deed of Severance which will transfer your property ownership into tenants in common. 

If you are joint tenants and remain as such then if anything happens to you your former partner will inherit the property outright as the surviving joint owner according to the rules of survivorship.    

Mum has re-married will I get anything from the Will?

When your mum re-married her existing Will was automatically revoked (cancelled) and it is therefore no longer valid. You will not therefore receive any legacy which she left to you in her old Will. It may be that you need to discuss this with your mum to make sure that she is aware of the situation and, if she wished to do so, she could make a new Will to provide for her new spouse and also you as her child. Should she not make a new Will the Intestacy Rules would apply and if your mum has only a small estate (less than £270,000) then her Estate will go outright to her new spouse.  If her estate exceeded £270,000 then her new spouse would take the first £270,000 plus personal possessions and the remaining Estate will then be split into two equal shares.  The first half share will go outright to your mum’s spouse.  The remaining half share will be divided equally between any surviving children (or grandchildren if one of the children have died leaving children).        

My father has re-married should he make a new Will?

On your father’s re- marriage his Will has been revoked.  He therefore needs to make a new Will to provide for both his new spouse and you his family.  Alternatively he can rely on the Intestacy Rules.  These rules make provision for both the spouse and any surviving children and grandchildren depending on the value of your father’s Estate.  If your father has only a small estate (less than £270,000) then his Estate will go outright to his new spouse.   

I’m getting re-married will my children still inherit my estate?

Marriage revokes any former Will as the law considers that your new spouse should be your primary beneficiary.  If however you have made your previous Will in contemplation of marriage then there should be provision in this to allow a marriage to take place and for the provisions of your Will to stand.  If this is not the case then it is important to make a new Will as soon as you are married.  Alternatively you can make a Will in contemplation of marriage prior to your marriage.  This can mirror the provisions of your current Will but careful consideration should be made of the way in which you provide for your new spouse in this Will.  The Inheritance (Provision for Family and Dependants) Act 1975 known as the IPFDA or the 1975 Act allows claims to be made against an Estate where reasonable financial provision has not been made for certain classes of beneficiaries which are primarily your spouse, co-habiting partners, partners and children or grandchildren who can show a dependence on your Estate prior to your death.     

Will my parent’s new husband/wife inherit everything?

Marriage revokes any former Will as the law considers that your new spouse should be your primary beneficiary.  If the marriage has revoked the Will and there has not been a Will made either in contemplation of the marriage or subsequent to the marriage then your new spouse will inherit according to the Intestacy Rules.  These Rules are there to protect the spouse first and foremost and will allow then to take the first £270,000 of an Estate’s value which can include any assets and the property.  They will also take the personal possessions regardless of value.  The remaining value of the Estate will then be split into two equal shares.  The first half share will go outright to the spouse.  The remaining half share will be divided equally between any surviving children (or grandchildren if one of the children have died leaving children).         

What happens to parent’s estate if they separate?

Separation does not in any way affect a Will that has previously been prepared and executed. Until a Decree Absolute in divorce proceedings is granted your parents Estate will be distributed according to their Wills (if they have them) or according to the Intestacy Rules if they do not have Wills prior to death.

How divorce affects your Will?

When a Decree Absolute is made or, in the case of a civil partnership, a Decree of Dissolution, any provisions contained in a Will which benefit the ex-spouse or ex-civil partner are automatically revoked.

For all intents and purposes your ex-spouse or ex-civil partner will be treated as if they are dead. Your ex-spouse or ex-civil partner will not, therefore, inherit your estate once a decree absolute or a decree of dissolution has been made. In addition, they will not be able to act as Executor even if the previous Will named them as such. If in your will you specified beneficiaries other than your ex-spouse or ex-civil partner then your estate will pass to such beneficiaries in accordance with the terms of your will. If your ex-spouse or ex-civil partner was the only beneficiary named in your will your estate will be distributed in accordance with the rules of intestacy.

Mum and dad are getting divorced do they need new Wills?

If your mum and dad are separated and a divorce will follow it is important for them to take advice on their Wills and what effect they want any future Wills to have. Often when your parents’ divorce as part of the financial settlement assets are written into trust for the children.  If this is not the case then they need to be advised how best to proceed.  Their divorce will end any appointment of each other as Executors and any beneficial entitlement being made for them from each other’s Estates but they need to decide what they want to do with their estates.  They will have jointly owned assets that need to be dealt with and split, they will have assets in their sole names and they will have assets that may pass outside of their Wills. They need to take advice on how to get the most out of their new Wills and ensure that their families are provided for adequately particularly if they have minor children or family members who are financially dependent on them.   

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