This article is part of our Estate Planning Essentials series. In this blog, we explain what happens to your will when a marriage ends and why reviewing your estate planning is essential. In earlier blogs, we cover estate planning for vulnerable loved ones and choosing the right trustees for your family.
It is quite a common scenario; a client approaches a family lawyer to enquire about possible mediation, or – if all hope has been lost for a reconciliation – ultimately, advice and assistance with the divorce and associated financial arrangements.
This can be an extremely painful time for individuals. Even if the relationship has been distant for some time, taking those formal steps can add another sting to an already sore point.
The last thing that a client may want to think about is how the relationship breakdown affects their Will and other estate planning. But this is crucial to consider.
How divorce affects an existing Will
A Will itself is not revoked by divorce or annulment. Where a testator has made a Will, and their marriage is legally recognised as being annulled or dissolved under English law, then any previous spouse named in a Will is treated as having died on the date of such annulment or divorce (section 18A of the Wills Act 1837). That is unless the Will is drafted with a contrary intention.
When you may still want to include a former spouse
This latter point may seem odd, but where the breakdown of the relationship is mutual and amicable, there may be circumstances where a client may still wish to name a previous spouse in their Will. For example, as an executor or trustee for joint children – section 18A doesn’t just apply to any beneficial interest; it would also apply to an executor appointment. So, this is worth keeping in mind.
Please note that these provisions extend to civil partnerships (section 18C of the Wills Act 1837 further to the Civil Partnership Act 2004).
The risk during separation
The legislation does not take into account the ‘limbo’ period i.e. separation, mediation, and/or time taken before an annulment or divorce is legally finalised. This is the period of risk, and a conscientious client would take steps to ensure their Will is updated. The Will update is perhaps the most obvious requirement, but it is just as important to consider wider estate planning aspects.
For example, nominations which may have been made under a pension trust, death in service, or life insurance policy. If a property is jointly owned, consideration should be given to the risk of survivorship i.e. if owned as ‘joint tenants’ where the survivor would automatically own the entire property on the death of a co-owner (regardless of any alternative provisions within a Will).
Marriage revokes a Will
With all this gloomy mulling, I think it’s important to end on the flip side of this consideration. Namely, that if a client already has a Will and then marries or enters civil partnership, such Will is automatically revoked at that date (section 18/18B of the Wills Act 1837).
Again though, this is subject to contrary provision within the Will, which in fact can be drafted in contemplation of such a (hopefully, forever happy) union!
How can we help?
Pippa Bavington is a Partner in the Wills, Life Planning & Probate team, based at our Sudbury Office.
Choosing the right trustee is one of the most important decisions in any trust arrangement. Our experienced private client team can guide you through the options and help ensure your trust is structured for long-term stability. If you’d like to talk about trust planning, our Wills, Life Planning & Probate team are here to help. Call us on 0845 543 5700 email [email protected] or contact us via our online enquiry form.